MACHINERY OF GOVERNMENT: THE COMPOSITION AND ELECTION OF THE STATES ASSEMBLY

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Lodged au Greffe on 20th November 2001

by the Policy and Resources Committee

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STATES OF JERSEY

STATES GREFFE

180 2001 P.179

Price code: C

PROPOSITION

THE STATES are asked to decide whether they are of opinion -

(a) to agree in principle that -

(i) the office of Senator should be abolished;

there should be a single election day for all members of the States;

(ii) there should be a standard term of office of four years for all members of the States;

(iii) the election day for members of the States should be moved from the autumn to the spring;

every candidate for election to the States should be required to produce a written policy statemen

(iv) a maximum level of election expenses for candidates standing for the States should be determinedagreed;

(b) to agree in principle that the office of senator should be abolished;

(c) to agree in principle that -

(i) the Connétables should cease to be members of the States by virtue of their office, but should nevertheless be entitled to stand for election as Deputy if they so wish;

(ii) there should be a single election day for the twelve Connétables, to be held no less than six weeks before the election for members of the States;

(iii) the Connétables should be elected for a standard term of four years;

(d) to agree in principle that an Electoral Commission should be appointed by the States to make recommendations for the reassignment of the 24 places formerly held by 12 Senators and the 12 Connétables that will become vacant as a result of the changes in paragraphs (b)a)(i) and (c) aboveb)(i) above.

to request the Policy and Resources Committee to prepare a programme and time-scale for the proposed changes for presentation to the States by the end of January 2002.

POLICY AND RESOURCES COMMITTEE

Notes: 1. The Finance and Economics Committee’s comments are to follow.

2. The Human Resources Committee’s comments are to follow.

REPORT

1. Introduction

1.1 The current debate on the Island’s system of government began in 1998 when the States agreed, in principle, to the appointment of an independent body to undertake a review of the machinery of government in Jersey. This review body was appointed in March 1999 under the chairmanship of Sir Cecil Clothier KCB, QC, and its terms of reference included the examination of the composition, operation and effectiveness of the States Assembly.

1.2 It is not proposed to give a detailed description here of the work of the review body, but those seeking further information may refer to Sections 2 and 3 of the Policy and Resources Committee’s recently published report and proposition entitled “Machinery of Government: Proposed Reforms” (P.122/2001), an amended version of which was approved by the States on 28th September 2001.lodged ‘au Greffe’ on 7 August 2001 For the purposes of the present report, it is sufficient to note that the review body worked assiduously for a period of almost two years, and during this time it carried out a wide-ranging review of the Island’s machinery of government.

1.3 The Report of the Review Panel on the Machinery of Government (the “Clothier Report”) was published in January 2001, and it generated a considerable degree of public comment and debate. One of the report’s most fundamental recommendations was that the Island’s committee system of government should be replaced by a ministerial system, combined with a system of scrutiny.

1.4 In considering the recommendations in the Clothier Report, the Policy and Resources Committee tookhas taken a view on which aspects of the report should be taken forward first, and those which should be taken separately. The Committee has accepted the principle that the Island’s government should move to a ministerial system and a system of scrutiny, and decidedbelieves that this should be given firstthe highest priority. The Committee’s proposals in this respect wereare set out in P.122/2001.

1.5 In the report accompanying P.122/2001, the Committee acknowledged that the Clothier Report made a number of other important recommendations, relating mainly to the organisation and composition of the States, including electoral arrangements. The Committee undertook to report back to the States on these other matters by the end of September 2001, i.e. before the proposals for a ministerial system and a system of scrutiny were to beare debated in the States. A draft version of this report and proposition was accordingly circulated to States members in mid-September, and was the subject of local media coverage at that time.

1.6 The Committee has since given further consideration to its proposals, and is now presenting an amended version of its report and proposition. For those who received the earlier version, it will be noted that the main change is that it has been updated to take account of the States decision on 28th September 2001.

1.7 This report should be seen asis therefore an explanation of the Committee’s position on these other recommendations that were made in the Clothier Report. In some cases it will be seen that the Committee has decided in favour of change, and where appropriate the Committee’s recommendations have been included in the proposition. In other areas the Committee has agreed that it does not believe change to be necessary, and the proposition is therefore silent on these matters.

1.8 In drawing up its proposals for the composition and the election of the States Assembly, the Committee would like to acknowledge the considerable debt that it owes the Clothier Panel. Although in some cases the Committee has taken a different view from that of the Panel, this view has only been reached after a period of discussion and reflection on the Panel’s recommendations.

1.9 The Committee is also pleased to acknowledge the assistance that it has received from its ad hoc Steering Group on the Machinery of Government. The Steering Group was appointed in March 2001 with the remit of “recommending a way forward on the machinery of government”, and as a part of its work it has examined and commented on every single recommendation in the Clothier Report. In formulating its own proposals, the Committee has had regard to the views of the Steering Group, and a complete account of the Group’s comments may be found in Appendix 4 of P.122/2001.

1.10 Lastly, but not least, the Committee would like to thank the public for its contribution to the debate. The Committee has taken into account the comments that were received from the public earlier this year during the consultation period, and it has also considered the comments that have been submitted to it and to the media since that time. Indeed, one of the Committee’s guiding principles has been the extent to which its proposals would be acceptable to the public. In matters relating to the composition and election of the States Assembly, it is essential that such considerations should be at the forefront of the debate.

2. The recommendations for change

2.1 The Clothier Panel made over 40 recommendations for changes to the Island’s machinery of government, and these are summarised in Chapter 11 of the Panel’s Report. A copy of Chapter 11 is attached as the Appendix to this report(Note: a copy of Chapter 11 may also be found in Appendix 1 of P.122/2001). In addition to the proposals for a ministerial system and a system of scrutiny, which wereare examined in P.122/2001, there are over 20 other recommendations in the Report covering a diverse range of subjects.

2.2 For ease of reference these other recommendations have been grouped according to subject, as follows -

· the Electorate and Public Elections;

· the role of the Senator;

· the role of the Connétables in the States;

· the States Assembly;

· the role of the Bailiff;

· facilities for States members, the Public, and the Media;

· the Parishes; and

· the appointment of an Ombudsman.

In each case, the Committee has commented on the recommendation(s) in the Clothier Report, and indicated whether it proposes to take any further action. The Panel’s recommendations have been underlined where they appear in the text, and are followed by the Committee’s comments.

2.3 The first set of recommendations, therefore, relates to the electorate and the arrangements for public elections.

3. The electorate and public elections

3.1 ‘A Chief Electoral Officer should be appointed’ (Recommendation No. 1):

In the Clothier Report it is recommended that there should be an independent Chief Electoral Officer whose duties would include the monitoring of elections and the maintenance of a central register of voters. The Committee notes this recommendation, and proposes to examine the proposal in due course in conjunction with the officers of the Royal Court and others.

currently having this responsibility.

3.2

‘There should be a central register of voters’ (Recommendation No. 2):

The Committee notes that the draft Public Elections (Jersey) Law (P.132/2001), as amended, was approved by the States on 23rd October 2001 was lodged ‘au Greffe’ by the Legislation Committee on 4^th September 2001 with a view to consideration by the States on 9^th October 2001. It is understood that the draftThe Law has not initiatedwill not be advocating any fundamental change to the parish-based system of registration, but it has made provision for will be recommending that all parish registers should to be centrally accessible to the public.

The Committee believes that the databases should be held electronically so that they will be easily accessible to the electorate.

3.3 supports the position being taken by the Legislation Committee in this matter, and further recommends that there should be a central database, incorporating each of the 12 parish registers, to be held and maintained at the office of the Comité des Connétables. This central database would help to facilitate public access to this important information.

‘Election Expenses should be determined by the States’ (Recommendation No. 3):

The Committee believes that it is highly desirable that there should be a limit on the amount of expenses that may be incurred by election candidates. Without such a limit, it could be argued that some candidates have an unfair advantage in that they are able to spend far more on their election campaigns than their opponents. It should be noted that many other jurisdictions have already chosen to place a limit on election expenses.

3.4 The Committee will shortly be bringing forward a report and proposition that will recommend to the States that the House Committee should be replaced by the Privileges and Procedure Committee. If this proposition is approved, the Privileges and Procedure Committee will be askedintends to ask the House Committee to prepare a report on theis subject of election expenses, with a view to bringing detailed recommendations to the States by the end of June 2002.

3.5 ‘Polling Stations to remain open from early morning till late evening’ (Recommendation No. 4):

It is understood that the draft Under the new Public Elections (Jersey) Law, lodged ‘au Greffe’ on 4^th September 2001, the opening hours for polling stations have been extended so that they will now includes a proposal that polling stations should be open from 8.00 a.m. to 8.00 p.m. on election day. The Committee supports this new provisione position being taken by the Legislation Committee in this matter, and believes that these extended hours of opening will make it easier for the public to exercise their right to vote.

3.6 ‘One general election only for all members of the States and for the 12 Parish Constables’ (Recommendation No. 5):

The Committee agrees with the view expressed in Chapter 2 of the Clothier Report that an election should be an important event in every responsible citizen’s calendar, and that if elections occur too frequently they will cease to become significant occasions in a citizen’s life. A single election date is much more likely to act as a focus for public comment and debate, unlike the present system in which there are 14 or more elections held every three years, i.e. the 12 elections for the connétables, as well as the separate elections for senators and deputies.

3.7 The position of the connétables will be examined in Section 5, but insofar as the other members of the States are concerned the Committee is proposing the introduction of a single election day.

3.8 The Committee believes that a single election date would be a more democratic option because it will give the electorate the opportunity to make a major change to the Island’s government if this were felt to be necessary. It could be argued that the present system is unsatisfactory because the electorate does not have the opportunity to make this sort of change.

3.9 The Committee also proposes that the elections should be moved from the autumn to the spring in order to take advantage of the lighter evenings and better weather conditions that generally prevail at that time of year. This should help to encourage voter turnout, and it would also be in line with the election cycle in other parts of Europe, many of which have moved to spring elections for the same reasons.

3.10 ‘Every candidate to produce a policy statement’ (Recommendation No. 6):

The Committee agrees in principle with the recommendation in Chapter 2 of the Clothier Report that every candidate for election to the States should be required to produce a brief statement of what his or her policies and objectives would be in the next session if they were to be elected. However, the Committee does not believe that such a requirement could be enforced, and therefore it recommends that this should be an expectation rather than a requirement. see the need to prescribe a maximum length for policy statements, and believes that this should be left at the discretion of the candidate.

It would be fair to say that most candidates for election already produce some form of written manifesto at election time, but this is by no means a universal practice. The introduction of a requirement forThe advantage of a written policy statements is that would mean that voters would automatically hasve an indication of a candidate’s views, and this . The policy statement can would also serve as a benchmark against which a candidate’s performance canould be gauged at the time of the next election.

4. The role of the Senator

4.1 ‘The Role of Senator should be abolished’ (Recommendation No. 7):

The Committee has given detailed consideration to the arguments for and against retaining the office of senator. Having considered these arguments, the view on the Committee is that the office of senator should be abolished, for reasons which are set out below.

4.2 The office of senator was introduced in 1948, and it was one of several major changes to the composition of the States Assembly that took place in the immediate post-war period. Since the 1940’s the Island has been well-served by its senators, and many of them have occupied the most senior positions in the Island’s government, e.g. the presidencies of the major committees. However, the office of senator has changed over the years, and it is no longer the case that senators can expect to receive these senior appointments as a matter of course. Indeed, apart from the fact that a senator serves for a term of six years, compared to a three-year term for deputies, it could be said that there is now little difference between the two offices.

4.3 It might be claimed that senators have a different role to play in the States because of their Island-wide mandate, and this requires them to take a broader view of the issues affecting the Island. However, both the deputies and the connétables are also expected to consider issues from a broader perspective, as the great majority of matters that come before the Assembly have an Island-wide impact.

4.4 There would appear to be concern in some quarters that the abolition of the office of senator will limit the degree of direct representation that the electorate will have in the States. In the present arrangements it could be argued that a voter is directly represented by at least 14 elected representatives, i.e. the 12 senators, plus one connétable and one or more deputies. However, the Committee believes that too much weight can be attached to this argument, as deputies could also reasonably be expected to provide the same degree of direct representation. It is only to be expected that a deputy will give priority to representing a member of his or her own district, but there is nothing in the deputy’s oath of office which prevents him or her from representing others who might live elsewhere in the Island, and indeed this is by no means unusual in the present system. If, however, it were felt to be necessary, the Committee would be willing to propose an amendment to the oath of office so that deputies would be required to represent the interests of all electors in the Island, in addition to those of his or her own district.

4.5 Although the majority of members on the ad hoc Steering Group wereare in favour of retaining the office of senator, the Committee does not share this view, and it agrees with the Clothier Panel that the office of senator has run its course and should be abolished. Clearly this is a contentious matter that can only be finally decided by the States Assembly.

4.6 Obviously this change will need to be carefully managed, and the Committee proposes that it should take effect in 2005 (i.e. the next election but one) in order to allow sufficient time to make the necessary arrangements. It is accordingly proposed that the six senators who were elected in 1999 should serve until 2005, and that the remaining six senators who are to be elected in the autumn of 2002 should serve a term of two and a half years, expiring in the spring of 2005.not exceeding three years. The practicality and detail of this proposal will need to be studied, and it will feature in an implementation plan that will be presented to the States by the end of January 2002.

5. The role of the Connétables in the States

5.1 ‘Connétables should cease to be ex officio members of the States’ (Recommendation No. 8):

Before addressing the question of whether connétables should cease to be ex officio members of the States, it is worth reflecting on what is meant by the office of connétable. The connétable is the elected head of a parish, and in this capacity he or she s/he is responsible for a wide range of services, including welfare, policing, the issue of licences, waste collection, and the general running of the parish. The connétable also plays an important role in the parish community, and in this respect he or shes/he may have an extensive involvement in voluntary and community organisations. The workload of a connétable can be considerable, and in some cases it could be regarded as being equivalent to a full-time job.

5.2 Although the connétable is a member of the States, he or shes/he is not elected directly to the Assembly, but is a member by virtue of his or her office.

5.3 Having given detailed consideration to the office of connétable, the Committee believes that it is no longer appropriate that the connétables should be ex officio members of the States. The States of Jersey wishes to be a modern democracyis a modern democratic parliamentary democracy, and in a modern democracy the Committee believes that every member of the legislature should be directly and specifically elected to that body. This does not mean that the connétables would not be eligible to become a member of the States. On the contrary, it is anticipated that many of the connétables wouldwill want to stand for election to the Assembly, and they would be able to do so as a deputy. Their local standing would obviously put them in a relatively strong position to secure elections’.

5.4 Insofar as the electorate isare concerned, the Committee believes that this change would actually provide a greater degree of choice. Firstly, there would be elections for the office of connétable, when candidates would be selected according to their suitability to serve as the head of a parish. Subsequently, there would be the elections for the office of deputy, when candidates would be judged according to their suitability as members of the States.

5.5 The Committee believes that this proposal will also give a greater degree of choice to a the connétables. In effect, the a connétables will have the freedom to decide whether to limit their public responsibilities exclusively to their parish, or whetherthey also wish to to take on the extra duties that are associated with being a States member. It seems likely that widening the degree of choice in this manner will lead to an increase in the number of candidates for the office of connétable, as it is understood that some have been deterred in the past from standing for election because of the prospect of having to take on both parish and States responsibilities.

5.6 The Committee has considered the arrangements for the election of connétables, and believes that it is unsatisfactory that there should be 12 different election dates for the 12 connétables. In practice this means that the general public does not have a clear idea of when individual elections are to be held, and elections are not given the prominence that they deserve. A single election date for all 12 connétables would help to heighten public interest in this important event.

5.7 The Committee has also considered the timing of a single election for connétables. If the States accepts that the connétables should no longer remain as ex officio members of States, the Committee believes that it would be neither necessary nor desirable to hold their election on the same day as the election for deputies. This is because the parish responsibilities of the connétables are very different from the responsibilities that a connétable would have if he or shes/he were to be elected separately to the States as a deputy, and there is therefore no need for the elections to be held at the same time. Indeed, the Committee recommends that the elections for connétable should be held at least six weeks prior to the elections for deputies, as this would mean that the connétables would have a reasonable interval in which to decide whether to stand for office in the States.

5.8 If, on the other hand, the States decides that the connétables should remain as ex officio members, then it is recommended that their elections should be held on the same day as the other members of the States.

6. The States Assembly

6.1 ‘An Electoral Commission to re-assign the vacant seats amongst the Parishes’ (Recommendation No. 10):

The proposed changes to the arrangements for senators and connétables will obviously have implications for the States Assembly, not least in terms of the need to reallocate the seats that would become available. 12 seats would become vacant as a result of the proposed changes to the status of the connétables, and a further 12 as a result of the changes in respect of to the senators, meaning that a total of up to 24 seats could need to redistributed.

6.2 The Committee proposesagrees that an Electoral Commission should be appointed by the States to review and come forward with recommendations as to how these vacant seats should be re-assigned amongst the parishes. It also proposesagrees that the Commission should be asked to examine the current distribution of seats, as it could be argued that there are discrepancies in the current system. These discrepancies have arisen because some of the parishes are much smaller in population than others, and yet they may have the same number of elected representatives. In the Committee’s opinion, there should be a closer correlation between the number of voters and the number of representatives, provided that any redistribution does not interfere with the external parish constituency boundaries. In those cases where there are two or more constituencies within a parish, the Commission may wish to examine how the internal boundaries between constituencies have been drawn.

6.3 In order to progress this matter, it is proposed that the Electoral Commission should report to the States through the Policy and Resources Committee. House Committee, as this is the Committee with responsibility for keeping under review the constituencies of members of the States. The House Committee would be charged with drawing up terms of reference and bringing nominations to the States for appointments to appointing the Commission. The Committee would also , and with considering the Commission’s recommendations before reporting back to the States with its own proposals for changes to the distribution of seats that reflect the considered advice of the Electoral Commission.

6.4 ‘All members of the States to enjoy the same title, ‘member of the States of Jersey’ (MSJ)’ (Recommendation No. 11):

The Committee has taken note of the comments in the Clothier Report regarding the nomenclature of States members., however Iit does not, however, consider that it is necessary to change the existing titles. The title of ‘Deputy’, for example, has been in use for nearly 150 years, and the nature of the office is well understood.

6.5 The Committee recommends that the title of ‘Deputy’ should be given to those members of the States who would occupy the seats to be made vacant by the proposed changes to the composition of the Assembly. These new members of the States would be elected in the same way as the existing deputies, i.e. by individual parish or district constituencies.

6.6 ‘There should be an assembly of between 42 and 44 members’ (Recommendation No. 12)’:

The Committee agrees that the actual number of States Members will need to be reviewed in due course, but it considers that for the time being it would be reasonable to proceed on the basis that the present numbertotal of 53 States members should remain unaltered. It should be noted that the

The Committee’s proposals for a ministerial system of government, as described in P.122/2001 and approved by the States on 28th September 2001, do not require any change to the actual number of members of the States members.

6.7 Whatever the decision of the States in relation to a ministerial system of government, However, the Committee also considers agrees with the view expressed in the Clothier Report that it would be desirable to reduce the number of States members in the longer term. The Committee believes that this will be possible, and that such a move would be in line with majority public opinion thinking. However, any proposal to reduce the number of members would need to take into account the impact on the workload of States members, and whether the increase in workload would generally be accepted as reasonable. What does this actually mean? The number of States members is a matter that the Electoral Commission would be asked to examine in due course.

6.8 ‘The interval between elections should be not less than four years, nor more than five’ (Paragraph 2.7 of the Clothier Report):

Although the issue of terms of office is not specifically addressed in the Clothier Report, there is an oblique reference to the subject in Chapter 2 of the Report, in which it is recommended that the interval between elections should be not less than four years.

6.9 The Committee has considered carefully discussed the terms of office that should apply to elected members of the States, and is of the opinion that a standard term of four years would be reasonable. The present term of six years for senators isdoes seem to be rather long, especially when compared with the position in to other jurisdictions. The three-year term for deputies, in comparison, iswould seem to be too short, especially when one takes into account the time required for new members to familiarise themselves with the States organisation.

6.10 The Committee accordingly proposes that the relevant legislation should be enacted so as to provide for a standard term of office of four years for all elected members of the States.

7. The role of the Bailiff

7.1 ‘The Bailiff should cease to act as President of the States or to take any political part in the Island’s government and the States should elect their own Speaker’ (Recommendation No. 37):

The Committee has already touched on the role of the Bailiff in its report and proposition P.122/2001, i.e. in the context of its proposals for a ministerial system and a system of scrutiny. In that connection the Committee has referred to the responsibility for external relations that would be held by the Chief Minister, and it has stated that the Bailiff will continue to be the official channel of communication so that he can exercise his role as the defender of the Island’s constitution (paragraph 6.14 of P.122/2001).

7.2 The Bailiff does, of course, have other important duties in the Island’s government, not least of which is his responsibility as the President of the States. This aspect of the Bailiff’s role is considered at length in Chapter 8 in the Clothier Report, and one of the main reasons given in the report for changing the present arrangements is the principle that ‘no- one should hold or exercise political power or influence unless elected by the people to do so’ (paragraph 8.4). The Committee agrees with this principle. Indeed, it is because of this same principle that the Committee is recommending that the connétables should no longer be ex officio members of the States. However, the Committee does not accept that the position of Speaker or President is necessarily a political one. The duty of a speaker in an assembly, after all, is to offer guidance and to preside over meetings of elected representatives. If a speaker were to show any evidence of political bias, his or her authority would soon be called into question.

7.3 The Committee considers that the Bailiff is well-qualified to act as the Ppresident of the Assembly, given his expertise in legal and constitutional matters, and it believes that he should continue to serve as the Ppresident of the States.

7.4 In reviewing the role of the Bailiff as Ppresident of the States, the Committee has considered the issue of whether he or the Deputy Bailiff should continue to have the right to exercise a casting vote, as described in Article 21 of the States of Jersey Law 1966. In practice the Bailiff’s vote is always exercised in favour of the status quo, but it could be argued that this in itself is a political issue, especially if the question being voted upon is of a contentious nature. The Committee believes that it would be more in keeping with the Bailiff’s non-political status that he should no longer have the right to exercise a casting vote. This would of course also apply to the Deputy Bailiff.

7.5 The Committee has also considered the Bailiff’s power of dissent, as described in Article 22 of the States of Jersey Law 1966. According to this Article the Bailiff ‘has power to enter his dissent to any resolution of the States susceptible of implementation if he is of the opinion that the States are not competent to pass the resolution’. This power of dissent has not been exercised in living memory, and the Committee does not believe that it is necessary for it to be retained. In matters relating to the competency of the States to pass resolutions, the Assembly may rely upon the Attorney General for expert advice.

7.6 In view of the above, the Committee proposes that the Bailiff’s powers to exercise a casting vote and to enter his dissent should be removed. However, the casting vote cannot be done away with until an alternative procedure for dealing with equal votes has been devised by the Privileges and ProcedureHouse Committee and agreed by the States.

7.7 In reviewing the role of the Bailiff, the Committee has also considered other duties which are distinct from those relating to his presidency of the States. In particular, the Committee has noted that the Bailiff has some ancillary duties which could be regarded as being of a political nature. For example, the Bailiff is the Chairman of the Emergencies Council, the Panel on Public Entertainment, the Licensing Bench, and also the Joint Chairman of the Commission Amicale. The Committee believes that the opportunity should be taken to review these ancillary duties, with a view to bringing these under political control. One of these responsibilities, the Chairmanship of the Emergencies Council, is to be proposed in the Committee’s Implementation Plan as a responsibility of