Machinery of Government- amended structure

STATES OF JERSEY

MACHINERY OF GOVERNMENT: AMENDED STRUCTURE

Lodged au Greffe on 3rd June 2010 by Senator A. Breckon

STATES GREFFE

2010   Price code: B  P.70

PROPOSITION

THE STATES are asked to decide whether they are of opinion

1. to agree that the current system of government in Jersey should be amended so that a more inclusive system is established with the aim of giving all States members greater opportunities to participate in executive decision-making, and that to achieve this aim –

1. the  current  restriction  on  the  total  number  of  Assistant Ministers should be removed and all Ministers should have a minimum of 3 and a maximum of 5 Assistant Ministers;
2. the  current  method  of  appointment  of  Assistant  Ministers should  be  amended  so  that  they  are  elected  and  can  be removed from office by the States;
3. Ministers should be required to consult with their Assistant Ministers  at  a  properly  constituted  departmental  meeting before taking significant ministerial decisions;
4. the current system of 5 scrutiny panels with defined remits should be replaced by a more flexible overarching system of scrutiny where ad hoc panels could be established to review individual matters of public interest, with all members other than Ministers able to participate in such panels and with the panels also able to co-opt persons who are not members of the States to participate in reviews;

2. to charge the Privileges and Procedures Committee, in consultation with the Council of Ministers, to take the necessary steps to bring forward the necessary legislation to give effect to the changes with a view to introducing the revised system in 2011 after the next ordinary elections.

SENATOR A. BRECKON

REPORT

It  was  with  great  expectations  that  as  part  of  a  root-and-branch  reform  of  the "machinery  of  government"  with  Ministerial  areas  of  responsibility  replacing  the Committee system being heralded as the new (and perceived by some as the only) "business-like" way to proceed, that a former States Assembly voted by a majority to move to a Ministerial system of government – with, of course, appropriate checks and balances in place. So although no politicians have or had mandate from the electorate they were to forge ahead anyway into this brave new business-like manner that the people  were  crying  out  for –  greater  decisiveness  and  accountability,  speedier decision-making, etc.

So the proof, as they say, is in the pudding, so what has actually happened?

From my memory recall there were 4 main strands to the effective change from Committees to Ministers –

1. Some Committees would merge together into fewer Departments/Ministries.
2. Ministers in general terms would assume the role and responsibilities of a former Committee.
3. Scrutineers would provide the checks and balances.

Accompanied by –

4. Easy access to information supplied by Ministers, with greater transparency and supported by a Freedom of Information Law.

The reason why the above was carried out and why we are where we are today flows from the Report and Recommendations of 19th December 2000 of the Review Panel on the Machinery of Government in Jersey, more commonly known as the "Clothier Report."

Setting aside other issues touched upon in the Clothier Report, such as – who should sit in the States, for how long and what they should be called – and staying with the move to Ministers from Committees the Report made a number of comments.

To set the general scene the Report said this –

"Jersey Today

On  the  face  of  it  Jersey  is  a  prosperous  and  fortunate  society.  With  its economy buoyed up on a tide of revenue driven by a burgeoning financial services industry, the Island is well able to maintain high standards of public services. When most societies around the world are concerned to promote and foster  development,  Jersey's  problem  has  been  to  keep  such  development within bounds. The insular authorities have been able to cope with unforeseen overspends and with ill co-ordinated decision-making because the Island has been driven forward by a favourable wind."

This is probably a polite way of saying that we had money coming out of our ears and any fool could run the place!

The Report goes on to suggest that the forming of an Executive could diminish the role of other Members, but suggests a "strong Assembly" may be a remedy for this – "which holds the executive to account." Interestingly quite recently some Members, including Ministers, find this a bit bothersome when they could be off somewhere being a bit more important! Why should they waste their time listening to back- benchers or answering boring questions?

Clothier had this to say at paragraph 3.4 –

"3.4  An Effective democracy requires not just an executive but the balance

of  a  strong  assembly  which  holds  the  executive  to  account  and scrutinises  its  actions  as well  as contributing  to the  formation  of policy. The evidence we received suggests that the States have not adequately performed either their executive or their critical functions. A number of those who presented evidence to us suggested that the establishment of a central Executive would in effect remove other Members of the States from the political leadership of the Island."

So has this in fact happened – how precious has the Council of Ministers become? Set out below is an "AGENDA" from the Council of Ministers' meeting of Thursday 27th May 2010.

Clothier had a view that States Members would be "contributing to the formation of policy": as can be seen below, any information is being virtually censored, even something as cutting-edge as a "traffic and transport strategy" is kept under wraps in case anyone gets too excited about the content.

COUNCIL OF MINISTERS

Meeting to be held at 9.30am on Thursday 27th May 2010 in the 9th Floor Meeting Room, Cyril Le Marquand House, The Parade, St. Helier .

AGENDA

Part A – OPEN

A1 TRANSFER OF ITEMS TO THE A' AGENDA

Part B – Confidential

The part b' agenda includes the following 5 items of business –

• Censored  Exemption 3.2.1(a)(xiv)
• Censored  Exemption 3.2.1(a)(xiv)
• Censored  Exemption 3.2.1(a)(xiv)
• Censored  Exemption 3.2.1(a)(xiv)
• Censored  Exemption 3.2.1(a)(xiv)  Is this what the public were promised or what they thought they were getting?

What happened to inclusive Government with transparency and reasonable access to information whilst respecting situations that merit a degree of privacy?

The Clothier Report at Chapter 10 –

"Towards a more Open Democracy

1. It is of the greatest importance that the moves we recommend towards a  clearer  distinction  between  "executive"  and  "parliamentary" responsibility should not have as a consequence a reduction in the democratic  influence  of  individual  citizens  and  voters.  We  havealready noted fears about creating an "elective dictatorship" underwhich  an  assembly  and  the  public  during  the  lifetime  of  agovernment, surrender to the members of that government unduepower and influence. (my emphasis) This is, perhaps, an extreme view,  since  as  we  have  remarked  Scrutiny  Committees  (and  in particular a Public Accounts Committee) can be effective forums for accountability,  particularly  where  members  have  no  rigid  party positions and can consider issues on their merits. Nevertheless webelieve that if a Council of Ministers is to be constituted in Jersey,composed of men and women whom the States have confidence, weneed  to  ensure  that  members  of  the  States  occupying  executive

office enable and encourage "back-benchers" and the public not merely to scrutinise and if necessary criticise policy and executive action after the event, but also to be partners with Jersey's Ministers in developing policies serving the best interests of the Island and commanding the confidence of its citizens. (my emphasis)

2. For this pattern of democratic partnership to flourish, there must bea preference for transparency and dialogue as opposed to secrecyand  governmental  dogmatism.(my  emphasis)  One  mechanism increasingly  used  in  other  jurisdictions  around  the  world  is  a Freedom of Information Act, and no doubt the Jersey institutions will wish to consider the extent to which they rely upon this device. It is, however,  inevitable  that  certain  information  has  to  be  held  in confidence,  particularly  to  allow  a  debate  about  policy  options designed  to  produce  a  conclusion  acceptable  to  all.  People  in ministerial office ought to be able to argue a case amongst their colleagues  with  vigour,  and  without  embarrassment  of  those colleagues  or  themselves.  We  have  already  pointed  out  that  if  aCouncil of Ministers is to be established in Jersey, one of the earlyitems on its agenda should be to decide whether, and to what extent,to observe a convention of collective responsibility."

One  of  the  perceived  benefits  of  those  that  were  gung-ho  about  Ministerial Government was basically that a group of people will sit in a room – decide to do something – then come out and get on with it – this off course is not either how it is or how it works, or indeed how it should be.

3. "While we do not think it would be feasible or desirable for a Council of Ministers to meet in public or to publish a detailed account of the exchanges between its members, we could see real benefit in making available  immediately  after  the  meeting  a  brief  summary  of  the business under discussion and any decisions made. If considerationof  a  particular  issue  is  conducted  in  total  secrecy  until  theannouncement of a firm government decision, other opinions canonly  be  expressed  after  the  die  is  cast.   It  is  an  observablecharacteristic of governments everywhere that they are extremelyreluctant to be diverted form the firm policy already announced." (my emphasis)

I wonder if this is ringing any bells, alarms or otherwise – something like the Council of Ministers have considered all the options and this is the best, indeed only way forward – dismissing other options for say taxation – in secrecy.

4. "Unless  the  determination  of  policy  is  a  matter  of  demonstrable urgency,  we  recommend  regular  use  of  consultative  or  discussion papers (often referred to elsewhere as "Green Papers") which fully present relevant data and underlying arguments and set out options for discussion and debate. On the basis of such papers, the relevant scrutiny committee of the States could summon and hear evidence from Ministers and officials, invite views from the wider public and prepare  reports  which  should  be  given  due  weight  by  Jersey's Ministers in the final determination of policy."

There are a number of tensions in the above paragraphs –

1. As can be demonstrated by the Council of Ministers' Agenda, they are very precious  with  sharing  information –  virtually  everything  is policy  in development' and therefore secret.
2. Only tea and biscuits are on an A' Agenda.
3. Ministerial Decisions compound the above with secrecy – coming in under the radar with no clear reporting structure.
4. The ability  to encourage  "back-benchers"  and  the  public  not  merely  to scrutinise,  and  if necessary  criticise,  policy  and  executive  action  is not apparent and in any case is happening after the event. Also to be partners with Jersey's  Ministers  in  developing  policies  serving  the  best  interests  of  the Island and commanding the confidence of its citizens is not happening – the public are not engaged – but are kept in the dark most of the time along with most  States  Members –  except  when  perhaps  "comfort  consultation"  is required or can be used as a convenient stalling mechanism.

In October 2005 under the (then) Policy and Resources Committee, a publication was produced that was widely distributed.

"A guide to Ministerial government in Jersey

In December 2005 a new system of government will be established in Jersey. The introduction of Ministerial system is the most important change in the Island's government for many years.

The States of Jersey has produced this leaflet to explain how this new style of government will work. The leaflet does not cover other issues that will be looked at, such as the question of whether there should be any changes to the make up and election of the States Assembly.

Why change?

In July 2000 the Clothier Review Panel* commissioned a survey of attitudes to the Island's government.

Many people expressed the following views about the States:

• Too big – too many States Members
• Too slow at making decisions
• Not sufficiently accountable
• No clear leadership
• Doesn't listen to voters' views

Since 2000, the States have introduced a number of measures to address many of  these  concerns. The  single  most  important  one  is  the  introduction  of Ministerial government, combined with a Scrutiny system.

Benefits of change

The reorganisation of Jersey's government should make its structure more logical  and  easier  to  understand.   It  should  speed  up  decision-making, improve communication and co-ordination between different departments and provide the best possible value for money. The aim is to create a more efficient and more effective government for the Island." (My emphasis)

So this is all very laudable to "create a more efficient and more effective government for the Island" – but what is the reality – where is the evidence? What has actually happened, and are Ministers actively managing their areas of responsibility or has political  influence  disappeared  overtaken  by  an  increase  in  officer  input  without proper accountability?

Evidence  suggests  that  Ministers'  portfolios  are  too  big;  and  that  effective  and engaging contact with the public has been lost. Large areas of responsibility, e.g. Health and Education, are not well-served without active political involvement and this cannot be achieved by 2 or 3 people. Having more politicians involved will lead to greater accountability, better service delivery to the public and better links with staff and the public.

Examples with the Incinerator Contract, in Health, Police, with Court and Case Costs, Property Management, Waterfront Enterprise Board, have more than a suggestion that

situations have got out of control and more importantly no-one seems accountable; but that's alright then – we can "move on" – as some may say – but at what cost?

Who really did decide (in an election year) to scrap prescription charges and do the States have an office strategy? If we do – who is responsible for it and where is it? I believe that on occasions someone politically really needs to be on the case otherwise things just do NOT happen.

Another glaring example of inertia and procrastination.

Do  we  have  a  joined-up  population,  migration  plan  or  strategy –  it  looks  pretty fragmented to me, demonstrating a total lack of up-to-date statistical information on which to base future policies for health, housing, education, planning, employment, elderly  care,  etc.,  etc.,  etc.  Surely  this  is  a  massive  failure  for  Ministerial Government – not joined-up and working together.

At a hearing of the:

"Health, Social Security and Housing Scrutiny Panel on Tuesday 13th APRIL 2010

The Chief Minister: Said this

I have not brought any other officers because I think this is really cross- departmental.  I  could  have  brought  10  or  20  but  that  does  not  seem  a particularly good use of our time and I think we need to focus, for a start, on why I am here appearing before Health, Social Security and Housing scrutiny panel when as Chief Minister I normally have dealings with the Corporate Services scrutiny panel. My interpretation was that there are certain issues which cut across various different departments and in that context the Chief Minister  is  not  the  puppeteer  but  holds  the  strings  between  the  different departments and performs that sort of continuity. So I think there may be times when I will say this is not really a matter for me, this is something for a particular  department,  and  if  we  focus  on  matters  which  are  cross- departmental issues I think we will get better use out of the time."

Members can make their own mind up about whether this is joined-up Government. Within the document earlier referred to circulated in October 2005 it stated –

"How the Ministerial system will work

Each Minister will be legally and politically accountable for their area of government. There will be up to a further 13 Assistant Ministers, each with an area of political responsibility, but they will not be part of the Council of Ministers." (My Emphasis)

Here, I believe we have a very grey area – Assistant Ministers – they are appointed by Ministers with the approval of the Chief Minister, but not elected by the States. There is no recognised structure for them to work in – there are no terms of reference for their role. The information booklet in 2005 clearly stated that "they will not be part of the Council of Ministers" – however, on many occasions they clearly are – so why is

this? They are not elected or accountable to the States, so how democratic or inclusive is this? So what are the qualifications to be an Assistant Minister – is it about what you know or who you know? My reason for stating that is I do not know the answer.

There fore I believe that the role of Assistant Minister should become a more integral part of the democratic process.

Scrutiny Review

Much good work has been done by a number of different Panels; however, the results have  met  with  varying  responses  from  Ministers  and  Departments.  Some  have received widespread acclaim and been acted upon; others have been virtually ignored.

A great deal of dedication, time, effort and energy has been required to produce individual reports, however, I am of opinion, having had first-hand experience for nearly 5 years, that the Scrutiny function would be better served under one umbrella – with reviews carried out by topic rather than a defined area – for example elderly care could  go  into  areas  of  Health,  Social  Security,  Housing,  Planning  and  Treasury without restriction and be more beneficial than having demarcation lines.

Panel Members could be drawn from all Members of the States – except for Ministers. Membership  of  Panels  should  include  people  from  the  community –  this  is  a tremendous asset that could provide a great public benefit. I believe there are many people who are willing to give up their time and effort on behalf of others on a particular project.

To my knowledge School Governors and the Public Accounts Committee benefit from the interest and contribution of lay Members and some Scrutiny Panels have also benefited. I believe this is a resource from the community we should not ignore.

The recent Report

STATES BUSINESS ORGANISATION SUB-GROUP: REPORT (R.59/2010)

Presented  to  the  States  on  24th  May  2010  by  the  Privileges  and  Procedures Committee.

"Foreword (Page 2)

In November 2009 the Privileges and Procedures Committee established a small Sub-Group to look at the organisation of States business. The decision to  set  up  the  group  came  in  response  to  concerns  about  the  significant increase in the number of States meetings during 2009, and the associated increase in the number of questions and the length of debates.

On 18th May 2010 the Sub-Group presented its Report to the Privileges and Procedures Committee.

The Sub-Group's Report indicates very clearly that in its view the current system of government established in December 2005 should be reviewed and that the matters that gave rise to concern during 2009 such as the rise in the number  of  Questions  or  the  length  of  States  Sittings  are,  in  fact  merely, symptoms of a wider problem."

"Ministerial Government (Pages 18 & 19)

During the Sub-Group's review, comparisons were drawn between the current ministerial system of government and the former Committee system. While a diverse group of members would participate in each Committee, it was noted that fewer members were involved in each piece of work under ministerial government. This had resulted in the discussion and information-gathering stages of the Committee system being transported into the States Chamber, with questions, repetition and misunderstanding the Chamber being perceived as time-wasting. It was accordingly suggested that the design of ministerial government was more suited to a party political structure: "I feel that a lot of the efficiency is wasted – if you see it as being wasted – in the design of the ministerial structure. Because I feel perhaps it was more designed towards a party-political  structure  rather  than  a  system  where  you  officially  have independent members" ( Deputy Jeremy Maçon)

This  view  has  echoed  by  Senator  B.E  Shenton:  "Part  of  the  problem  is Ministerial  Government.  This  ill-conceived  proposal  was  not  intelligently thought through and it has a number of what are likely to be terminal failings. In  this  case  the  splitting  of  the  Chamber  into  executive'  and  the  non- executive' was always going to be adversarial and only an idealistic dreamer would argue otherwise. No doubt we will persist in trying to make this concept work  but  eventually  all  the  sticking  plasters  in  the  world  won't  keep  it together"  Senator  Shenton  suggested  that  the  structure  of   Ministerial government  was  flawed,  in  that  the  Chamber  was  divided,  causing unnecessary friction and duplicating both work and costs. "Consultants are hired by both the Executive and Scrutiny to examine the same policy, Scrutiny members do not feel part of the Government and are frustrated by the lack of power, and the position of Minister lacks the checks and balances necessary for such a powerful role."

Problems were also cited in respect of the role of Ministers. "Because of lack of understanding of their portfolios I do feel that, to a certain extent Ministers do get led by the nose I think that perhaps there is a case whereby there's a perception  that  Ministers  seem  to  be  led  by  the  civil  servants  and  don't necessarily have as much understanding as they should." ( Deputy Maçon)

"When you attain the position of Minister you often rely on the advice of your Chief Officer and feel very isolated if you have concerns regarding their recommendations. There is no one to discuss the matter with, no one to input an alternative view, no one to provide some form of checks and balances. If we had a party system the party would help keep the Minister in line by ensuring that he sticks to agreed policy By electing independents into the role, in effect a party of one, there is no structure to keep the Minister in line or tie the whole Council of Ministers together."

Deputy P.V.F. Le Claire considered that the move to Ministerial government had cut off the flow of information and had left some members without a function. He considered that the Council of Ministers did not run on collective responsibility and suggested that a smaller Committee-system would have

been involved in the decision-making process, resulting in fewer questions and great levels of trust between members."

"Senator Shenton suggested that a revised system be introduced as follows –

• Each Minister has a Deputy Minister and 3 Assistant Ministers
• Ministerial Decisions have to be signed by the Minister and at least to Assistant Ministers
• Any dissent from signing by any Assistant Minister would have to be reported
• A person may hold a maximum of 2 Assistant Minister positions
• Assistant Ministers may also sit on Scrutiny Panels providing this does not conflict with any Assistant Minister positions held
• Assistant Ministers would not be able to chair Scrutiny Panels or the Public Accounts Committee"

"Findings (Pages 20 & 21)

The Sub-Group does not consider that making small adjustments around the number  of  propositions  that  may  be  lodged,  time  limits  on  speeches,  the number of questions – to mention a few items – will make any appreciable difference without looking more deeply at why the increases in questions and individual members' propositions is occurring.

The Sub-Group is of the view that the exclusivity of the ministerial system of government, which provides that only a small number of people have real insight into government, means that most do not have access to the decision- making process or to the information on which it is based. Consequently, contrary to the expectations of the public, few members of the States are able to answer their queries on the many issues that concern them.

The Sub-Group believes that the number of questions has increased so much because members, and Scrutiny, are unable to access the information in a timely fashion, in any other way. In addition, given that many decisions are being made in relation to States activity by just 10 people out of 53 members, asking  questions  gives  an  opportunity  to  members  to  bring  checks  and balances to the decisions made and to hold the Ministers to account. The Group  felt  that  Ministers  might  also  be  overwhelmed  by  the  amount  of business within the department, the complexity and depth of the detail, and, realistically, would be unable to interrogate and verify the draft proposals put to them by officers. Such a situation leads to the supposition that senior civil servants are running the show'.

The Sub-Group also considers that the reason why the number of propositions proposed by individual members has increased is because this is the only way in  which  members  are  able  to  influence  policy  and  ensure  that  their suggestions are adopted, in a climate where Ministers are reluctant to be diverted from their own programmes and plans.

By contrast, in the former Committee system of government, draft policy was thrashed out by up to 7 people on a Committee, and they were able together to think through in more depth all the proposals and recommendations. That element of discussion or even thinking aloud', while mulling over the best

way forward, has disappeared. Members on a Committee might each have taken an area of specialism from the department, and developed a greater understanding of that area, with the ability to lead discussions on that item. While some Assistant Ministers have specialised areas of responsibility, there is no evidence that this occurs in all departments, and there is still a lot of ground to cover between 2 or 3 members.

The Group is of the view that there are fundamental questions about the ministerial system of government that require review, as the new system of government, which may be good in parts, is not working as a whole as it was intended. Members of the Group received many comments from the members, both formally and informally, indicating that the theoretical benefits of the ministerial system as set out by the Clothier Panel were not being realised in practice  because  many  members  felt  totally  unable  to  make  the  positive contribution to government in the Island that they had hoped to make when elected. The Sub-Group was particularly struck by the following extract from a submission made by Senator B.E. Shenton – "When Members are elected they are, in the eyes of the public and themselves, members of Government. They expect to have influence in the decisions of State and the fascinating mixture  of  political  views  in  the  Chamber  should  provide  a  diverse  and encompassing Government. The weakness of the system is that the Troy rule divides the Chamber, causes unnecessary friction, and duplicates both work and  costs.  Consultants  are  hired  by  both  the  Executive  and  Scrutiny  to examine  the  same  policy,  Scrutiny  members  do  not  feel  part  of  the Government  and  are  frustrated  by  a  lack  of  power,  and  the  position  of Minister lacks the checks and balances necessary for such a powerful role." "

I think some of those comments from colleagues speak for themselves – they share my concern for the way Executive Government is NOT working for the benefit of the people.

Financial and manpower implications

I believe that there are significant economies that will flow from a more joined-up system of Government.

The adoption of this Proposition will not require any additional manpower in my opinion.