Jersey’s Black Hole–We are all in it together????

We are all in this together” said the Chief Minister Gorst when explaining how Jersey is to get out of the fiscal “black hole” which is some £145m deep.  Or in simple terms every Jerseyresident needs to pay £1,438 to get out of the hole- according to a draft financial plan presented to States Members.

But not to worry we are all in this together says Chief Minister Gorst, but hang on, how did we get in the hole in the first place and what role did Joe Public play in getting into it? We elect States Members to ensure good governance so we don't get into holes. It would seem that Senator Gorst or should I say Senator Ozouf got us into the hole and expects us to get out of it....

Coming Up in the States

What's happening in the States this week? Here's a brief overview plus commentary.
Proposition: Draft States of Jersey (Minister for External Relations) (Jersey) Regulations 201-.
Reference: P67/2013
The preamble for this proposition sets forth the rationale for having a Minister for External Affairs or Foreign Affairs. This doesn't involve any extra expenditure; there will not be an extra Ministry set up with Chief Officer and underlings. And it does seem to me an eminently sensible way to proceed - it's something which the Isle of Man certainly has.
"The international norm is for each jurisdiction around the world to have 3 positions in order to conduct external relations. These 3 positions are: (1) Head of State (for Jersey, Her Majesty the Queen), (2) Head of Government (for Jersey, the Chief Minister), and (3) Minister for Foreign Affairs (not at present a ministerial post in Jersey and hence now proposed as Minister for External Relations). The United Nations Protocol and Liaison Service maintain an up-to-date reference list of Governments with official titles of the respective Heads of State, Heads of Government and Ministers for Foreign Affairs."
"There would be enhanced accountability to the Council of Ministers, as a Minister would be in attendance at each Council meeting to account for their actions in a way that is not necessarily the case with an Assistant Minister. There would be improved accountability to the States Assembly, as a Minister would be voted into office by Members and would be required to regularly answer questions in the Assembly and appear before scrutiny as is the case with other Ministers."
But I would like to suggest that the Assistant Minister who currently deals with Foreign Affairs should not automatically be promoted into the new position. It is a new position, and while I am sure that many people will consider that Senator Bailhache has done sterling work, the new position should start as it means to continue. And that means a proposal for the candidate by the Chief Minister, with the possibility of other candidates being proposed, with an ensuing election decided by open ballot.
Proposition: Draft Loi (201-) (Amendement) sur la Voirie. Reference: P.70/2013
"Give greater flexibility in the dates of the Visites du Branchage by extending the period from 15 days to 21 days (21 days from 24th June and from 1st September) - Article 7"
This proposition was due much earlier in the year, and has rather missed the time this year. It also made much needed changes to the position regarding Branchage regarding responsibility in the case of co-ownership association (in the case of flying freehold); and the company (in the case of share transfer flats).
I dealt with the law changes there in detail on my article on the Rosscot Chartered Accountants website:
Proposition: Draft Public Finances (Amendment No. 4) (Jersey) Law 201- Reference: P.73/2013
Establishment of the States Insurance Fund;
Medium Term Financial Plan and Heads of Expenditure;
Role and Remit of the Treasurer;
Extending the Accounting Officer role;
Formalisation of the Fiscal Policy Panel; and
Miscellaneous - Law to be amended by Regulation; and amendments to the administration arrangements for Special Funds.
"The final part of the amendment enables the Minister for Treasury and Resources to make Regulations to amend Parts 3 and 4 of the principal Law (excluding Article 15 which deals with the power to give immediate effect to a Law that is a taxation draft). These Parts deal with the States administrative process for the Medium Term Financial Plan and Budget and States Trading Operations. The States would still be required to approve any amending Regulations, but these would not require further approval by the UK Privy Council."
As there is a backlog of around 130 laws (or amendments to laws), anything which speeds up the process of how the States operate is to be recommended. This has the advantage that it permits changes to regulations which do require approval by the States, but would no longer require the sometimes lengthy wait for approval by the Privy Council.
Proposition: Draft Public Finances (Amendment No. 4) (Jersey) Law 201- (P.73/2013): amendment. Reference: P.73/2013(Amd)  - Corporate Services Scrutiny Panel
"The Fiscal Policy Panel is an independent advisory body to the States, and this position must be reflected in every aspect of the primary legislation. In order to maintain its independence, the Panel propose an approach which follows a similar process to the appointment of the Comptroller and Auditor General. It is based on the requirement that following a selection process, a Proposition that has been signed by both the Chief Minister and the Minister for Treasury and Resources should be brought to the States for its approval of appointment."
This is an important amendment because it ensures that while the selection process is in the hands of Chief Minister, the final approval of that appointment must be made by the States.  It ensures that proper scrutiny can be made of the appointment, and any concerns about conflicts of interest raised in the States Chamber.
Proposition: Jersey Appointments Commission: re-appointment of member. Reference: P.79/2013
"The re-appointment of Commissioners to the Jersey Appointments Commission, to re-appoint Mr. Julian Rogers, as a Commissioner of the Jersey Appointments Commission until 23rd February 2014."
"The Commission consists of a Chairman and 4 other Commissioners. The Commissioners are required to meet 4 times per year, to contribute to the production of guidelines that will apply to States' employees or States' appointees, to audit recruitment and to oversee recruitment to senior posts."
It should be noted that Julian Rogers is also wearing another hat - he is Chairman of the States Remuneration Panel, which decides on States Members pay. This has occurred before, and I've already discussed potential conflicts of interest in a previous blog:
Proposition: Draft Adoption (Amendment No. 6) (Jersey) Law 201-. Reference: P.80/2013
"The amendment's purpose is to repeal paragraph (3) of Article 11 of the 1961 Law which prevents a single male from adopting a female child unless the Court determines that there are 'special circumstances'"
"It is worth noting that since these 2 cases the 1961 Law has been amended to take account of the Civil Partnerships (Jersey) Law 2012 which has accorded civil partners the same rights as married couples when adopting. Nevertheless, as occurred in 2009 and 2011, homosexual male partners who are not in a civil partnership continue to be prevented from making a joint application to adopt female children. Consequently, in its written judgements to both cases, the Court expressed the hope that the legislature might consider whether article 11(3) of the 1961 Law ought not to be repealed."
"This call was prompted in the first instance by the Court's understanding that the provision is based on an outdated rationale which essentially holds that men pose a de facto risk to female infants. Furthermore, it assumes that fathers are unable to meet the emotional needs of a female infant whereas, presumably, a mother is capable of meeting those of a male infant; insofar that nothing prevents women from adopting a male child."
This brings Jersey in line with the UK and changes the situation regarding who can adopt, removing the part of the legislation which was biased against the adoption of a female child by a male couple. There was an asymmetry in the assumptions of the law, and it is only right and proper that it be changed. In fact a recent Cambridge University study showed that:
"In-depth research into the experiences of adoptive families headed by same-sex couples suggests that children adopted by gay or lesbian couples are just as likely to thrive as those adopted by heterosexual couples. It also reveals that new families cope just as well as traditional families with the big challenges that come with taking on children who have had a poor start in life. "
This might however court some unpopularity in various quarters because of religious reasons, and it will be interesting to see if religious bias surfaces in the debate or whether the proposition gets implemented as a matter of routine. There was, after all, considerable disquiet among religious adoption agencies in the UK. Notably around 2007, Catholic Church bid to be exempt from UK laws on adoption by gay couples, and leading members of the Church of England weighed in on their side






Remember the panel is yet to be chosen. Let us not forget the States Greffier, Michel Dela Haye, who has the utmost respect of States Members, across the board, is overseeing the appointments of the panel. Team Voice has faith in Mr De La Haye and believe he is the right man for the job. 

The very fact that that this COI is going ahead in the first place is testament to the cooperation and determination of abuse survivors, a handful of politicians and the Jersey Bloggers. Let's not forget that it was not that long ago that then Chief Minister, T Le Suer, said that there would not be a COI at all. The then Council of Ministers lodged a report that scuppered the COI promised by the previous Chief Minister Frank Walker. It is important to note that the report brought to the house by Terry Le Suer and agreed by the then council of minsters could not be amended or challenged as a proposition could have been. 

This is just a small snapshot as to how we got a COI. Senator Le Gresley acted straight away when the report was read. The Senator lodged a proposition that we should have a full COI which was passed in the states on March 2nd 2011.

Rightly so people are sceptical. Victims/survivors and witnesses might view the enquiry with scepticism and after all the corruption and cover-up who could blame them. The spotlight is fully on Sally Bradley QC and this COI which comes on the back of the Savile, Stephen Lawrence and the Hillsborough cover-ups. The corruption was eventually exposed and victims and families are finally receiving the hard fought justice they sought. 

The evidence that was gathered in the original enquiries was what brought the inevitable justice even if it was achieved many years later. Without that initial evidence justice would/could never have been obtained.

Every scrap of evidence, we suggest, should be submitted to this COI. Let history record this evidence. At first glance, with the appointment of Sally Bradley QC, it does appear that Mr De LA Haye has chosen well. Ok, the rest of the panel members have yet to be chosen but we believe it is far to early for it to written off as a whitewash. The Victims/Survivors their families, friends and supporters have been given a chance and some much needed hope that their horrific ordeals can now be documented to a COI purposely set up to get to the truth about decades of failure, corruption and abuse in "THE CARE" of the States of Jersey where the innocence of childhood was so cruelly taken from them. 

Team Voice will be submitting all the evidence we have. We encourage all our readers to get behind us and this Committee of Enquiry. It deserves a chance as do the victims / Survivors and their families.

Team Voice

Voting Rules and Collective Responsibilty

Dr  Jonathan Renouf pointed me to some useful background comparison stuff on the the Isle of Man government code of conduct  

He comments that:
"It deals more with what is forbidden than what is allowed (ie ministers must respect collective responsibility). They draw a very clear line around the Council of Ministers, which only includes Ministers, not their assistants. In fact, they don't call their assistant ministers "assistants", they are called departmental members, but they are to all intents and purposes what we would call AM's. They are excluded from collective responsibility with the exception that they must support their own minister."
He also points out that in the current set-up, Ministers themselves have on occasion voted against the Council of Ministers. That's certainly true, and Senator Ian Le Marquand did vote against the Council of Ministers on a rise in GST to 5%, honouring his manifesto commitment.
But Senator Sarah Ferguson thinks this is uncommon behaviour. The normative behaviour is for the Council of Ministers and Assistant Ministers to vote more or less in unison. She asks: "And do you really think that most Ministers will not select Assistant Ministers who do not agree with them? Or that Assistant Ministers who want promotion will not vote with their Ministers? Look at the voting records."
Again, a case in point is Deputy John Le Fondre, who did not agree with his Minister, Senator Philip Ozouf, and was removed, and another States Member appointed in his place. The Minister, after all, does have the power to "hire and fire" their subordinates.
My concern is that if there is a move to Collective Responsibility, which is certainly the way the Chief Minister wants to go, that the same safeguards that are in the Isle of Man would not be in place in Jersey. The Troy Rule, after all, was brought in by a backbencher, not by the chief architect of the Clothier reforms, Pierre Horsfall, who somehow overlooked that (along with much else of Clothier)!
The other factor which alters the dynamic is pay. If Ministers are paid more than ordinary backbenchers, or even Assistant Ministers, then there is an increased incentive for not voting against the Council of Ministers if you want promotion.
Those, as Dr Renouf points out, are hypothetical musings, and I agree that we should not pre-empt matters, but it is interesting that while Clothier managed to include what became the Troy rule in his recommendations, that there is no real consideration of this in the Electoral Commission's recommendations.
Instead this is what they have to say on the matter, after discussing the Troy rule:
None of this, however, falls within the terms of reference of the Commission. It would be for the States to consider in due course, if our recommendations were accepted, whether the "Troy" rule should be adapted or abolished having regard to the smaller number of members of the States Assembly. If the "Troy" rule were retained, it would be necessary to reduce the number of Ministers and Assistant Ministers to 18 so that the differential with the 24 non-executive members could be maintained.
We record that we have seen the draft interim proposals of the sub-committee appointed by the PPC to consider the machinery of government. There is nothing in those draft proposals that has caused us to revise our interim recommendation as to the number of members of the States Assembly.
In other words, unlike Clothier they do not consider it part of their remit to comment on the future of the Troy rule, and what the States should do. Clothier was forceful, but the Commission essentially passes the buck to the sub-committee considering the machinery of government. Those draft proposals are not, as far as I am aware, in the public domain, so we are in fact having to decide on the basis of  incomplete information. It would be helpful if Dr Renouf perhaps have some indication of what the sub-committee's drafts look like.
The review of the machinery of government went to public consultation, and I made a submission, as did Mark Boleat. Our submissions both agreed on the key question which relates to the Troy rule:
He wrote:
Should the Executive continue to be forced to seek consensus by being outnumbered in the States?
Yes; this is a normal part of the democratic process, but it does require collective responsibility to operate, otherwise there is a danger of paralysis.
And I wrote:
 Should the Executive continue to be forced to seek consensus by being outnumbered in the States?
This is a good safeguard against the abuse of power, and in fact, I'm not sure of any occasion where the Executive has brought a proposition which has fallen through being outnumbered. On several occasions, however, Terry Le Sueur's Council of Ministers took a swift recess to discuss and change their opinions on propositions to avoid being outnumbered, which was no bad thing.
While there are no political parties, there are political alignments (clearly visible in voting patterns), and these usually work in favour of the executive anyway. Reducing the need for consensus would therefore not be a wise move.
The Review of the Machinery of Government is one of those shadowy consultations, which is not nearly as high profile as the Electoral Commission, and has been going alongside another consultation on the Jersey Election Laws (which may look at election deposits). But as can be seen, it clearly dovetails with the work of the Electoral Commission,  and the terms of reference should have looked at this in more detail, because it is significant with respect to this question.
The unwillingness of the Commission to share the information about that question asked in the Machinery of Government Review means that we have to speculate about how a smaller States might work. They may have seen the draft report, but for the rest of us mortals, it is a matter of speculations in the dark.  "We've seen the draft,. " with the implication "and you can trust us" is simply not good enough. It's a lazy way opting out.
So in answer to the question asked:  "why let the evidence get in the way, when there's a pre-formed opinion waiting to be deployed"?, we have to speculate because only the Commission is privy to information which would help us see how the Machinery of Government may alter. There is a lack of evidence, which perhaps Dr Renouf could rectify? I don't take quite the cynical line of Sarah Ferguson, although one should consider worst-case scenarios, but I would welcome more information so that I could make a better informed decision.

Who supports the Troy Rule?

I have not heard Ben Shenton speak on Option B, and he gave an interesting perspective last Friday at Communicare on how he sees Government in Jersey, quite apart from the Options themselves. While Deputy Sean Power was defending the role and responsibilities of the Constables in the States, and thereby making a case against Option A, Ben Shenton took on the task of opposing Option C.

What is remarkable is that his argument could still be made from either a supporter of Option A or Option B. It was not, in fact dependent on retaining the Constables. That is because he was opposing the Troy Rule which gives the number of States members by which those outside the  Executive (Council of Ministers, Assistant Ministers) should outnumber those within the Executive.

The Troy rule, proposed by Deputy Peter Troy, just gave weight and formality to principles that had already been present in the Clothier report, but which had been overlooked when Senator Pierre Horsfall was bringing in the other changes from Committees to Ministerial Government and cherry picking like mad. 

Clothier concludes that: "There must be a majority of Members of the States not in executive office to provide scrutiny of those who are, by means of 3 or 4 Scrutiny Committees."

The amendment brought in by Peter Troy adapted the Clothier recommendation for a 'minority' executive by specifying that this minority should always be smaller than the size of the executive by a factor of at least 10% of the total membership of the Assembly. That rule is now embodied in article 25(3) of the States of Jersey Law 2005 as follows - "The number of Assistant Ministers appointed shall not cause the aggregate of the Chief Minister, Ministers and Assistant Ministers to exceed 22 individuals." [The number is due to reduce to 21 in 2014 as a result of the States of Jersey (Miscellaneous Provisions) (Jersey) Law 2011.]

And again, elsewhere in Clothier, it is noted that "These considerations all point to an Assembly in which a clear majority of members are not holders of executive office but are numerous enough to constitute a number of bodies sufficiently detached from the business of government to provide an independent scrutiny."

As Senator Sarah Ferguson remarked on the Friday meeting, this was a major check against the Council of Ministers pushing through measures without consensus, and she quoted Clothier here:

"The existence of party however is not necessary to the concept of audit or scrutiny. What is absolutely necessary is that there should exist in any assembly a sufficient number of members not actually in executive office and therefore free to observe with a critical eye those who are. Moreover those uncommitted members should have the ability, the facilities and the resources to study some particular aspect of government, to research it and so be able to audit effectively the conduct of government by those in charge and to participate in the formulation of policy. This is what is meant by the commonly used, but ill-defined expression "checks and balances". It is clear enough what is meant - the prevention of the uncontrolled exercise of power by a few powerful people."

Ben Shenton, however, has a very different idea of how Government should work. He argued that Jersey must be one of the few jurisdictions where the executive is actually in a minority. He said that we elected the States, the States elected a Chief Minister, a Council of Ministers was elected, and we should trust them to get on with the job of governing.

But that's actually not looking at the fine details of how many jurisdictions operate. In many jurisdictions, proportional representation in some form is the norm, rather than the "first past the post" method used in the UK. An executive body is formed, but is is often a coalition between different factions, and dependent on their support, so it has to be much broader based if it is to survive; there is an inbuilt element of consensus.

That's not the case, of course, in the UK, where the government is only really accountable to the country at election time, and has with the structure of whips and parties can command a majority without the need for a coalition, until recently (and not counting the Lib-Lab pact of the late 1970s).

Moreover, Jersey does not have parties,  so you can't apply that model here; the only way to ensure consensus government is to have the Jersey equivalent of a coalition, which is the Troy rule.

Ben Shenton's idea of government, that you elect people and trust them to govern for 4 years with no way of being effectively accountable to the rest of the States is totally at odds with anything I would wish for. It is fact a far more radical change than removing the Constables from the States; it shifts the whole balance of power, and removes the checks and balances that Clothier was so keen upon.

Ben's argument that Assistant Ministers do not have to vote the same way as the Council of Ministers (also in the Commission's Final Report)also begs the question of whether that will be the case if the Council of Ministers changes from its present form as a consensus body chaired by the Chief Minister to more of a cohesive Cabinet. That may well change the dynamic and make more incentive for towing the Council of Ministers stance, as might differential pay for Ministers, with prospects of promotion dangling before Assistant Ministers. Who will rock the boat then, when there is more inducement to be loyal?

Clothier in fact, was rather critical of the UK style of government, and thought Jersey could do better:

"In the party system familiar in Westminster the accepted duty of those not in power is to constitute a formal opposition to the government in being. This tends to become a ritual duty to oppose everything that is done, which therefore does little to change the course of government action in any constructive way. But a formal opposition is by no means the only, nor necessarily the most effective, way of providing that scrutiny of government which constitutes a check on the abuse of power."

Instead, he advocated effective scrutiny: "In any reconstruction of the central component of Jersey's machinery of government the provision of effective scrutiny seems to us essential." But part of the way that had to be effective, and could not be dismissed out of hand, because the executive could just push matters along regardless, was for what we now call the Troy rule to be in place:

"These considerations all point to an Assembly in which a clear majority of members are not holders of executive office but are numerous enough to constitute a number of bodies sufficiently detached from the business of government to provide an independent scrutiny"

The main thrust of the argument by Senator Ferguson on Friday for Option C was against the massive reduction in numbers to 42, in which she thought that with at least one more Ministerial positions (Minister for Justice), the Troy rule could not easily hold, and hence the checks and balances would be gone.

That is something that Option A need to examine in detail, because the thrust of their argument has been on voter parity in the super constituencies, and certainly on Friday night, they did not address the Troy rule, and how it could work in terms of numbers in a much smaller assembly. Rather than just focusing on voter parity across districts, this is as important.

Would Option A provide a more democratic form of government in Jersey if it gave rise to an Executive that could rule regardless of opposition? As Sarah Ferguson noted: "If there are 2 more ministers agreed - which is by no means certain - that means 27 in the executive and 15 in the non executive. What price dictatorship then?" (She doesn't mince her words!). Option A needs to get its act together on this. If there is to be a reduction to 42, and more Ministers, how can the safeguard of the Troy rule be applied?

It is also worth Option B supporters reconsidering whether they should be as dismissive of the Troy rule as Ben Shenton was on Friday night. He is, according to the press, the chief spokesman in support of Option B. The lack of concern for a system whereby trust is invested in the execute is something that certainly concerns me very considerably. It might be how a business is run, but that messy element of consensus in the States because of the Troy rule is something very important; it prevents "the uncontrolled exercise of power by a few powerful people.". If you are voting for Option B, do you really want to be supporting a case which tears up the Troy rule? Should other voices on this subject be heard within Option B, if they don't all agree with Ben Shenton?

Now I'm not advocating Option C here, but I am saying that there are matters apart from the Constables which seem to be largely overlooked, and the reduction to 42 and how well the Troy rule can work with that needs more far consideration than it is getting.