Electoral Commission: composition and terms of reference.

STATES OF JERSEY

ELECTORAL COMMISSION: COMPOSITION AND TERMS OF REFERENCE

Lodged au Greffe on 13th January 2012 by the Privileges and Procedures Committee

STATES GREFFE

2012   Price code: B  P.5

PROPOSITION

THE STATES are asked to decide whether they are of opinion

to refer to their Act dated 15th March 2011 in which they agreed that an independent  Electoral  Commission  should  be  established  in  Jersey  to investigate  and  report  on  all  aspects  of  the  composition  of  the  elected membership of the States Assembly and the election and voting processes for such members; and to vary that decision as necessary and –

1. to agree that the Commission should be comprised of 3 members of the States, one of whom shall be its Chairman, together with 3 other persons with appropriate skills and experience who are not members of the States, appointed by the States on the recommendation of the Privileges and Procedures Committee following a recruitment process overseen by the Jersey Appointments Commission;
2. to agree that the Chairman and 2 States members should be appointed by the States immediately following the adoption of this proposition, with  the  nomination  and  ballot  procedures  for  these  positions following the process set out in Standing Orders for the selection of the Chairmen and members of scrutiny panels except that –

1. nominations  for  the  2 members  shall  be  invited  from  all members  without  initial  nominations  being  made  by  the Chairman; and
2. voting for the Chairman and members shall be undertaken by open ballot and not by secret ballot;

3. to agree that the terms of reference for the Commission shall be –

"1.  The Electoral Commission shall consider all the following

areas –

• Classes of States member;
• Constituencies and mandates;
• Number of States members;
• Terms of office;

and all other issues arising in the course of the work of the Commission which are relevant to the needs stated above.

2. The views of the public in Jersey should be sought and all such  views  taken  into  consideration.  Formal  meetings  and hearings of the Commission should be held publicly in Jersey unless  the  Commission  believes  that  there  are  reasonable grounds for  holding  a  meeting  or  hearing  in  camera. The content of all written submissions to the Commission will be made available to the public, unless the Commission believes that  there  are  reasonable  grounds  for  non-disclosure  of  a

submission or part of a submission, and should be attributed unless the submitter explicitly requests that a submission shall be non-attributed and the Commission accepts the reasons for such a request.

3. The Electoral Commission shall review existing studies and research and conduct further research as it sees fit.
4. At  the  conclusion  of  its investigation,  the  Electoral Commission shall present a report with recommendations to the  Privileges  and  Procedures  Committee  to enable  the Committee  to present  the  Commission's  proposals  to the States for approval prior to the submission of the proposals to the electorate in a referendum under the Referendum (Jersey) Law 2002.";

4. to request the Privileges and Procedures Committee, in consultation with the States members appointed as Chairman and members, to take the  necessary  steps  to recruit  the  remaining  members  of  the Commission  and  to request  the  Commission  to  forward  its recommendations to the Committee no later than December 2012.

PRIVILEGES AND PROCEDURES COMMITTEE

REPORT

Introduction

On 15th March 2011 the States adopted a proposition of the then Deputy of St. Mary (as amended by certain amendments lodged by the Deputy himself and by Senator B.E. Shenton)  and  agreed  that  an  Electoral  Commission  should  be  established  to investigate the composition and election of the States.

In adopting the proposition as amended the States agreed –

1. that an independent Electoral Commission should be established in Jersey to investigate  and  report  on  all  aspects  of  the  composition  of  the  elected membership of the States Assembly and the election and voting processes for such members, with the guiding principles of the Commission's investigation to be –

1. the need to secure the greatest possible acceptance by the public of any new arrangements proposed, and
2. the need to ensure that the views of the electorate are reflected as effectively and as fairly as possible in the make-up of the States and of the Executive, namely the Chief Minister, Ministers and Assistant Ministers;

2. the following terms of reference of the Electoral Commission – ELECTORAL COMMISSION TERMS OF REFERENCE

1. The Electoral Commission shall consider all the following areas –

• Classes of States member
• Constituencies and mandates
• Number of States members
• Terms of office
• The functions of the electoral process
• Voting systems
• Voter registration

and  all  other  issues  arising  in  the  course  of  the  work  of  the Commission which are relevant to the needs stated above.

2. The views of the public in Jersey should be sought and all such views taken  into  consideration.  Formal  meetings  and  hearings  of  the Commission  should  be  held  publicly  in Jersey  unless  the  Panel believes that there are reasonable grounds for holding a meeting or hearing  in camera.  The  content  of  all  written  submissions  to the Commission  will  be  made  available  to  the  public,  unless  the Commission  believes  that  there  are  reasonable  grounds  for  non- disclosure of a submission or part of a submission, and should be attributed unless the submitter explicitly requests that a submission

shall be non-attributed and the Commission accepts the reasons for such a request.

3. The Electoral Commission shall review existing studies and research and conduct further research as it sees fit.
4. At the conclusion of its investigation, the Electoral Commission shall put forward a complete package of how the elections to the States should  operate  in  Jersey,  with  this  package  being  capable  of commanding the support of the public, and only to desist from this duty ifin all conscience it finds itself unable to do so.;

3. that the Privileges and Procedures Committee, after consultation, should bring forward proposals for debate ahead of the debate on the Annual Business Plan 2012 detailing the proposed composition of the Electoral Commission, its anticipated costs, and how it isto be funded;
4. that the Privileges and Procedures Committee should take the necessary steps to identify, through a process overseen by the Appointments Commission, the proposed  membership  of the  Commission  for subsequent  approval  by  the Assembly  on  a  proposition  lodged  by  the  Privileges  and  Procedures Committee;
5. that, on receiving the recommendations of the Electoral Commission, if the Commission has recommended a package of election reform (excluding such matters  as  could  be  classed  as  administrative  improvements,  for  example matters  pertaining  to voter  registration),  the  States  should  take  into consideration the wishes of this Assembly which is that they should put the option to the electorate in a referendum having followed the procedures laid down in the Referendum (Jersey) Law 2002;
6. that the Electoral Commission, subject to additional funding being provided in the Annual Business Plan 2012, shall be requested to endeavour to complete its work no later than 31st December 2012.

The former PPC published a consultation document about the establishment of a Commission  on  13th  May  2011  (R.54/2011)  and  then  published  its  final recommendations on the possible structure of the Commission on 7th September 2011 (R.110/2011).  The  Committee  expressed  the  view  in  this  second  report  that  the Commission's recommendations would have a greater chance of success if a majority of its members were local residents, although it also considered that there should be some  outside  expertise.  The  Committee  therefore  proposed  a  structure  of  a Commission  of  5 members,  with  a  local  Chairman,  2 members  from  Jersey  and 2 expert members from outside the Island.

The States voted a budget of £200,000 for the Commission's work as part of the Annual Business Plan 2012 proposals.

Proposed revised structure of an Electoral Commission

Since taking office, the current Privileges and Procedures Committee has considered the  best  way  to  progress  the  establishment  of  an  Electoral  Commission.  The Committee is determined to do all it can to achieve long overdue reform of the composition of the States in time for implementation in October 2014 and, although the Committee has only recently been appointed, it is conscious that there is a very tight timescale as set out below if a reformed structure is to be in place for the next elections.

Having reviewed the original proposals for the Commission as agreed by the last Assembly and the former PPC's recommendations, the new Committee has agreed by a majority that the States should be given the opportunity through this proposition to debate whether the new Assembly wishes to revise the March 2011 decision.

The most significant change that PPC is inviting members to debate is whether the Commission should be chaired by a States member and include 2 other members of the States, alongside 3 independent members. PPC has noted that the reform of the States  was  an  important  issue  during  the  2011  elections,  with  the  poll-topping senatorial candidate standing on a very clear platform of achieving reform by 2014. Although it is never possible to ascertain the precise reasons for any candidate's success, PPC believes it is clear that Senator Bailhache 's pledge to seek to be involved in the work of the Electoral Commission struck a chord with the electorate who voted for him in record numbers. With a clear message about the need for reform from many other candidates in the elections as well, PPC has concluded that it is appropriate to ask the new States to consider whether the March 2011 decision should now be varied so that the Commission can include elected members.

Although some may consider that the involvement of States members will lead to yet another failure to achieve reform, the present PPC does not share this view. The Committee believes that members must have a stake in the work of the Commission and disagrees with the comments made by the former Deputy of St. Mary in his proposition (P.15/2011) about the inability of the States to drive forward reform. In the report accompanying his proposition (P.15/2011) he wrote –

"Most  of  us,  I  believe,  are  agreed  that  we  cannot  reform  ourselves  in  a comprehensive and resolute way" (...) "I should add that in my view, this is not an occasion for breast-beating. It is just a fact that this particular issue is not amenable to being settled by ourselves." () "The call for a Commission is quite understandable in that: (a) what we have is demonstrably unfair; and (b) the States cannot do major reform of its own composition.".

The present PPC does not share the former Deputy 's views on this issue. States members are elected by the people of Jersey to take decisions on every important issue facing the Island and PPC considers that it would be an abdication of responsibility for members  to  pass  responsibility  on  one  of  the  most  significant  decisions,  the composition of the States Assembly, to an outside body. The last Assembly showed it was capable of taking incremental decisions on reform with the move to a single election day in 2011, the transition to a full general election for all members in October 2014 and a small reduction in membership. PPC is confident that a majority of members of the Assembly elected in 2011 will be willing to drive through more significant  reform  if  workable  recommendations  emerge  from  the  work  of  the

Electoral Commission. PPC considers that these reform proposals are likely to have a much greater chance of success when they are debated if they have been developed with the involvement of elected members. Past experience in relation to reports by bodies including no States members, such as the 2000 Review on the Machinery in Government in Jersey (the Clothier' report), or the 2010 Review of the Roles of the Crown Officers (the Carswell' report), shows that many of the recommendations have never been implemented in full when States members have been asked to consider them or have simply never been brought forward for debate. For example, none of the 6 Clothier  recommendations  on  the  composition  of  the  Assembly  have  been implemented and no steps have been taken to debate the principal recommendation of the Carswell review that the Bailiff should cease to be President of the States.

PPC is determined that the work of the Electoral Commission should not come to a similar unsatisfactory conclusion. The Committee considers that the involvement of 3 States members will enable the Commission to maintain close liaison with other members  during  the  review,  and  this  will  increase  the  likelihood  of  acceptable recommendations emerging from the work of the Commission. PPC is nevertheless recommending that the Commission should also contain 3 other members who are not members of the States. The Committee considers that the involvement of these 3 non- States  members  will  bring  a  useful  outside  perspective,  and  in  making  this recommendation the Committee has taken account of the way in which the mixture of States members and non-States members has worked very effectively for a number of years on the Public Accounts Committee. A mixture of States members and non-States members will, in PPC's view, provide an ideal mixture of internal States expertise and an external perspective.

In reviewing the existing proposals for the Commission, PPC also considered whether the members who are not States members should be locally-based or brought in from outside the Island. Although PPC has decided not to be prescriptive about this in the proposition, the Committee's own preference is for members who are locally-based or who  have  very  strong  Jersey  connections  if  living  outside  the  Island.  If  the Commission is to have any chance of success, the members must understand the Jersey context and culture; and the failure to implement the recommendations of earlier reviews may stem in part from the fact that Panel members from outside the Island  did  not  have  this  understanding.  Even  if  persons  from  outside  the  Island brought particular expertise of electoral reform or electoral systems, the lack of a detailed knowledge of Jersey's history and culture would put them at a significant disadvantage when considering what recommendations would have any chance of being acceptable to the electorate and to the Assembly. The creation of a Commission of totally Jersey-based members would also enable the work of the Commission to be undertaken in a much more timely way without the need for members to have to travel to the Island for meetings.

It will, of course, be necessary to ensure that any locally-based members approach the work in a totally objective way, but the Committee shares the view expressed by its predecessor in R.110/2011 when it stated –

" it will be essential to ensure that those who apply do not come with preconceived ideas or existing strong views on the matters to be addressed by the Commission. PPC accepts that it may be difficult to find local residents who meet this requirement, but who still have appropriate skills and sufficient interest  in  the  subject-matter  to  be  willing  to  give  their  time,  but  the Committee  is  hopeful  that  this  will  not  prove  to  be  impossible.  Recent

experience with the review of the role of the Crown Officers, chaired by Lord Carswell, shows that local Panel members can be selected who approach a task such as this in a totally objective way.".

If this proposition is adopted, PPC intends to advertise for expressions of interest within the Island before undertaking a short-listing and interview process. This will be done with the involvement of the Jersey Appointments Commission to ensure that a robust and fair recruitment process is followed. The names of those selected will then be brought to the States for approval. PPC does not think that the possibility of appointing one or more members who are resident outside the Island should be ruled out, but the Committee does not intend to take active steps to advertise or seek expressions of interest outside Jersey. It is, of course, quite possible that candidates with  suitable  experience  and  local  connections  may  become  aware  of  the advertisement and apply for membership. PPC nevertheless intends to make it clear that membership would be on a purely honorary basis, although reasonable travel and accommodation costs would need to be met if a member from outside Jersey was appointed.

Proposed timescale

As mentioned above, PPC is concerned that the work of the Commission must be undertaken in a timely way if reform is to be in place, after a referendum, by October 2014. The proposition therefore proposes that the Commission finishes its work no later than December this year. Although October 2014 may seem a distant date at present, the following timetable, which works back from October 2014 and which has been updated from the one given in R.110/2011, shows how important it is that the Commission finishes its work by this date –

Establishing the Commission

As indicated in paragraph (b) of this proposition, the Chairman and 2 States members would be appointed by the States immediately after the debate on this proposition if it is adopted.

The appointment procedure would mirror the procedure used for the appointment of Chairmen and members of Committees/Panels except that: (i) nominations for the 2 members would simply be made by members without any initial nominations from the Chairman; and (ii) voting would be by open ballot and not by secret ballot.

The use of this appointment procedure for the Chairman means that all candidates will be able to speak for up to 10 minutes about the manner in which they would discharge their duties as Chairman of the Commission, and would then be questioned by other members  for  up  to  20 minutes.  This  may  take  some  time  if  there  are  several candidates, but PPC considers that the position of Chairman will be an extremely important one, and it is important that all members are given the opportunity to understand how candidates would approach the position before voting. The ballot procedure used, namely a series of ballots with the lowest placed candidate dropping out until one candidate obtains a majority of votes cast, will ensure that the member appointed has the support of a majority in the Assembly.

Following the appointment of the Chairman, nominations would be invited by the Presiding Officer to fill the 2 States member positions and, if there were more than 2 candidates, a ballot would be held to select the 2 members.

Once the States have agreed the proposed composition of the Commission as set out in this  proposition,  and  the  Chairman  and  2 States  members  have  been  appointed, immediate steps will be initiated to recruit the 3 non-States members. As shown in the timetable  above,  the  need  to  allow  time  for  applications  and  to  then  lodge  the proposition in relation to the appointments for the required 4 week period means that the non-States members cannot be appointed until the States meeting of 1st May 2012, but the Commission will be able to begin work immediately after that date once the appointments  have  been  made.  The  Jersey  Appointments  Commission  will  be involved  in  the  recruitment  process  and  PPC  will  then  recommend  the  persons selected for approval by the Assembly. To enable the Commission to start work as soon  as  possible  after  1st  May,  practical  arrangements  for  matters  such  the secondment of an officer to support the Commission will begin once this proposition has been adopted.

The timetable above allows the Commission some 8 to 9 months to complete its work by December 2012. PPC accepts that this is an ambitious timescale, but considers that there will still be adequate time to seek views from the public, hold public meetings, consult with States members and undertake and/or commission whatever research the Commission wishes. If all members of the Commission are locally-based or able to travel  to  the  Island  whenever  required,  there  should  be  no  difficulty  for  the Commission to complete its work by the proposed deadline.

Financial and manpower implications

As mentioned above, the States voted a budget of £200,000 for the Commission as part of the Annual Business Plan 2012. The proposals now being put forward by PPC in this proposition will lead to a considerable saving on the costs initially envisaged last  year,  as  those  costs  included  a  significant  sum  for  the  fees  and  travel/ accommodation  costs  of  a  Chairman  and  external  members.  The  costs  of  the Commission will now be restricted to the cost of secondment of an Executive Officer for some 9 to 12 months and matters such as advertising, transcription costs, room hire (if  necessary), equipment set-up  for  hearings  and  public  meetings.  PPC  does  not anticipate that the total costs will exceed £80,000 to £90,000 as set out below.

1 The cost of an officer has been estimated for 12 months as, although the Commission itself

may complete its work in 8 to 9 months, the officer will almost certainly be needed to assist with the preparation of the necessary proposition to the States and the preparation of the referendum.