By Mark Egan
What makes a parliament effective? What are the factors which make parliaments better at making laws or representing the people? These issues were discussed during the PSA Parliaments and Legislatures annual conference in October 2016. I spoke from the perspective of a parliamentary practitioner with experience of the UK and Jersey about the additional challenges faced by small parliamentary bodies in achieving the Holy Grail of effectiveness.
Background: a brief introduction to Jersey
Jersey is a Crown Dependency – a territory which owes its allegiance to the British Crown but is not part of the United Kingdom and is only very loosely overseen by the UK government.
The States of Jersey is the principal political authority on the island, its constitution and powers being set out in the States of Jersey Law 2005. It is made up of 49 elected members and a small number of ex officio members. Until 2005 the States had both executive and legislative functions, the government of the island being carried on by means of a plethora of committees of elected members. A ministerial system was introduced in 2005. Ministers are elected by the States and may then choose Assistant Ministers. A maximum of 21 members of the States may be ministers or assistant ministers (including the chief minister). A system of scrutiny panels was also set up when ministers were introduced.
Legislation passed by the States Assembly must be approved by the Privy Council and registered in Jersey’s Royal Court before it takes effect. The UK can extend legislation to Jersey but only with the consent of the Assembly. The Assembly is able to enact secondary legislation on its own authority. The States is financially self-sufficient.
Some 46 of the 49 elected members were elected as independents (three members represent the left-wing Reform Jersey party).
Parliamentary functions: how Jersey performs
Assuming that the four main functions of a parliament are scrutiny, legislating, debate and financial control, how does Jersey perform?
In terms of scrutiny, each fortnightly sitting of the Assembly begins with a 2-hour period of oral questions with notice (to all ministers), followed by 30 minutes of oral questions without notice to two pre-determined ministers. This period can see lively exchanges but the number of questions does not always fill the time available.
Five scrutiny panels between them cover the work of all of the departments of the States and they each have significant programmes of meetings, especially with departmental staff and ministers. Between them they have published seven reports in 2016 (although they may also issue comments on motions (known as propositions) which can be as substantial as reports).
The Assembly’s Order Paper normally contains a number of legislative propositions of different sorts. All legislation must be tabled (‘lodged’) for a set period before debate, six weeks in the case of ministerial business. However, it is customary for all the stages of the legislative process to be taken at one sitting and scrutiny by a panel is rare. It is unusual for backbenchers to lodge amendments to legislation.
Although provision exists for general debates on the important issues of the day(known as ‘in committee’ debates) these are unusual. There is no equivalent of the UK’s backbench adjournment or Opposition Day debates.
In terms of government spending, ministers’ multi-year financial plans must be lodged for 12 weeks before being debated and approved. The 2017-2019 plan was the subject of a week-long debate in September 2016, with 12 amendments from backbenchers and panels. One of the main elements of the plan, a new ‘health charge’ was voted down by the Assembly. The annual budget must be lodged for eight weeks before it is debated. Retrospective scrutiny of how public money was spent is conducted by the Public Accounts Committee, which includes lay as well as elected members.
Constraints on effectiveness
Many of the factors which constrain the effectiveness of parliaments in other jurisdictions, such as resources and the inherent complexity of much government business, are present in Jersey.
However, there are two important respects in which the particular characteristics of the States Assembly influence its effectiveness: its size and the cultural context in which it operates.
The States Assembly is not small compared to its comparators. Guernsey’s States of Deliberation has 40 members (including two from Alderney). Tynwald in the Isle of Man has 33 members. However, there are challenges in filling ministerial, scrutiny and other administrative positions from a pool of 49, especially when some members may not wish to serve on such bodies or be away for long periods because of sickness or maternity.
Options for reducing the number of Assembly members, often discussed in recent years, must include consideration of how this might affect the Assembly’s effectiveness. The most recent study of this subject (by an ‘Electoral Commission’ comprising elected members and external experts) concluded that a minimum of 42 members was required to operate Jersey’s political system and this conclusion has not been challenged.
Jersey’s political culture also influences the effectiveness of the Assembly. The most striking aspect of the Assembly from a UK perspective is the absence of an Official Opposition and the view, not universally shared, that politicians should work together on policy development rather than question and challenge those in power. The small size of the island’s population and the reach of the local media may also mean that politicians do not need to use the Assembly as a platform for communicating their views to their electorates (which in some cases may be very small).
In systems where the executive forms a part of the legislature there is evidently a tension between the role of parliament as the machine for processing ministers’ legislative bidding and the functions of scrutiny and challenge. In recent years in the UK non-government roles, such as scrutiny and providing a forum for debate, have been increasingly emphasised. However, the situation in Jersey tells a different story. On election, the first action of Jersey’s States Assembly is to elect a chief minister followed by the island’s other ministers. Forming a government, not challenging it, is the foremost function of the Assembly. Secondly, the mantra that good scrutiny leads to good government may not be persuasive in a small, socially cohesive jurisdiction, where parliamentarians believe that consensual policy-formation is both achievable and likely to be more successful than the cut-and-thrust of Westminster-style politics.
Mark Egan is Greffier of the States. More details about the States Assembly can be found if you click here.