Accountability under democratic constitutions

A personal overview given by the Minister of State at the Department of Justice to a conference at Wilton Park
Michael Wills
26 February 2010

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This is a personal overview given by the Minister of State at the Department of Justice to a conference at Wilton Park in early February.

Representative democracy remains the best system of government we have been able to devise: combining the potential for effective and fair government, with a fair distribution of power among all citizens, fair treatment of minorities, the effective ability to tackle complex issues continually as they arise and effective space for deliberation to refine and improve policy, so voters don't vote in haste and repent at leisure.

Disengagement from this system for all its merits, has been growing for some time before the crisis over parliamentary expenses crystallised discontent.  In 1973, only 15% strongly believed 'people have no say in what the government does'. In 1994, 30% agreed that they have 'no say in what the government does’. In 2003 56% agreed that they have 'no say in what the government does'.

This alienation is found across society: where once the politically excluded could develop political machinery to gain a purchase on power, that appears to be no longer the case but equally those with social and economic power often feel their concerns are not heard by government.

This is more than a traditional and healthy cynicism about those in power: it flows from complex, deep-seated, long-term causes: the decline of deference and hierarchy, the fragmentation of communities destroying the social base for political parties, better educated and autonomous empowered individuals who expect the same control over politics that they  exercise in other areas of their lives, the multiplication of information sources which feed off and feed inherent cynicism about the powerful. Three generations after universal adult suffrage, the vote is taken for granted and the long continuing accretion of power to the executive diminishes the institutional power of elected representatives, increasing a sense of the futility of elections and finally increasing sense of the limits of politicians' power post-globalisation - when tidal flows of capital and labour and media around the globe seem more important that decisions taken by politicians.

This matters. Our constitutional arrangements reflect - and determine - how power is distributed in our country. And that determines how every other question in our public life will be answered.

This isn't just about the grand issues that populate textbooks: about protecting the individual against the state and about balancing liberty and security. It's also about  overcoming the daily frustrations of public life, the tin-eared in the town hall,  the ability - or inability - of parents to get schools admission authorities to listen to what's best for their children. It's about getting support to tackle anti-social behaviour. It's about the hunting ban and the smoking ban. It's about tackling the discrimination and prejudice many of our people still have to endure. 

Where power is located and how it's distributed, and how it can be exercised, go to the heart of the  most elemental human aspiration - for each of us, as far as is practicable and consistent with the ability of others to do the same, to live our lives fulfilled, peacefully, free from  arbitrary interference and control by others.

This  always matters - but when times are good it's sometimes easy to forget the importance of the equitable distribution of power. When most are prospering,  concerns about whether people have adequate control over their lives may step into the background. But when times are tougher, and people feel more vulnerable and threatened, then a sense that they do not have adequate control over their own life, and that others are controlling it for them, then that creates  risks for the peace and  stability and cohesion of society. We saw this over and over again in the nineteenth and twentieth centuries.

We should never be complacent about our constitutional arrangements and whether they adequately deliver the fairest possible distribution of power in our society.

The government’s programme of constitutional reform has sought to address these issues and it has been driven by two assumptions.  First: in healthy societies,  power is never concentrated in the hands of a few but diffused as widely as possible -  and flows freely. Society is diverse and complex - so too must be the distribution of power.

And second that the struggle can never cease - power always clusters, chemically, round the powerful. And it requires rigorous and vigorous activity to reverse this law of nature.

Constitutional reform is never easy - it raises difficult questions about how best to strike the balance between the individual and the community, how best to secure an appropriate relationship between the rule of law and parliamentary democracy, how far should  executive power be fettered by the courts and in what ways, how best to balance the scrutiny and accountability of the executive by the legislature with decisive government.

It always encounters resistance from those who sit comfortably in power. It’s all too easy for prominent politicians to believe in their continuing entitlement to exercising power and to resist attempts to make them more accountable.  Also this is contested territory. All of our constitutional institutions lay claim to a fundamental role in protecting and securing the freedoms of the citizens from whom authority and legitimacy derive in a democracy.

Parliamentary sovereignty resides at the heart of our constitution. And Parliament, rightly, claims legitimacy to exercise power on behalf of the people who elect it, making laws for the courts to apply, and holding the executive to account, and, indeed, providing authority for the executive to govern.

The executive, the state, claims to deliver effective government for the citizen, without which lies anarchy, a condition where the powerful prevail and the vulnerable succumb.

And the courts, interpreting and applying the law of the land, rightly, claim the ability to review actions by the state to ensure that it acts not arbitrarily, abusing power, but according to the rule of law which ensures the equal protection of all.

Each of these claims is contested once they stray beyond agreed limits.  The dangers of government praying executive efficacy in aid of the arbitrary exercise of power are well documented. Government dominance of the House of Commons has created concerns about what Lord Hailsham famously called an elective dictatorship, with the reduction of the power of the legislature to restrain the executive challenging the legitimacy of the doctrine of parliamentary sovereignty. 

Some eminent jurists have even suggested that the doctrine should not apply if government sought to undermine the democratic principles which confer legitimacy on it and that in what Lord Steyn has called  'such exceptional cases' 'the rule of law may trump parliamentary supremacy’. 

But, equally the rule of law only applies within accepted political norms. Authoritarian dictatorships might still operate within what, it might be argued,  was the rule of law, at least in the formal sense of the phrase. To secure its legitimacy, the law needs to operate according to the underlying values of the society within which it applies. As Lord Bingham has argued  'democracy lies at the heart of the concept of the rule of law' - because the citizen should 'have a say in the laws by which he is bound'.

And the ability of the courts to restrain parliament is itself fettered by the position of the judiciary in our constitutional system. The very independence of the judiciary which secures its integrity also shapes boundaries on its power. In the resonant words of Lord Bingham 'The British people have not repelled the extraneous power of the papacy in spiritual matters and the pretensions of royal power in temporal in order to subject themselves to the unchallengeable rulings of unelected judges.'

Such contest is inevitable - and healthy. Healthy constitutions evolve  and they evolve most successfully through debate and deliberation. Only in a world, yet to exist, where governments always governed benignly, where parliaments always legislated wisely and freely on behalf of all citizens and the courts always dispensed justice that was universally accepted, would this not be the case.

Our constitution is not validated by how far it measures up to an abstract system of ideals. It's rather an organism which derives its legitimacy from the way it has evolved over time, tested by event and circumstance, meeting the needs and aspirations of the people it serves, deriving from an organic mix of common law and statute.

The imperative now is to engage the people of this country once more with their democracy. And the key to that is greater accountability for those elected to govern. That is the connection between government and governed.

And this theme runs through the government’s reforms, past and present. The diffusion of power through devolution was driven in part by the need to enhance accountability in those areas. The Freedom of Information Act is an engine for the transparency which secures accountability. The Human Rights Act secures in this country the accountability of the state for protecting fundamental rights and freedoms of the individual.

Our plans in the next term to change the House of Lords into a democratically elected institution are driven by the need for the second chamber of the legislature to be accountable.

The imperative for greater transparency and so accountability are helping drive our debate on a new Bill of Rights and Responsibilities and beyond that the full codification of our constitution which the Prime Minister announced last week as integral to the next stage of our reform programme.

And the move towards a new system of voting, with our proposals for a referendum on the Alternative Vote, are driven by the need to secure greater legitimacy for MPs, so that every MP is elected with the support, in some form or other in most cases, of at least 50% of voters, while maintaining the direct accountability of MPs to their constituents.

But we must be careful how we respond to this challenge to secure greater accountability. Alternative models of democracy are available. Broadband technology could easily create an electronic infrastructure for a system of plebiscitary democracy. 

Passionate advocates of measures of direct democracy, including plebiscites, can sometimes sound as if passing contentious issues directly to the people for decision is an unarguable good. It isn't. While they can have a place in our constitutional arrangements, they can also be a recipe for passing control of our democracy to the wealthy and powerful. Plebiscites do not offer adequate opportunity for deliberation of complex issues. They do not offer the opportunity to weigh competing policy objectives against each other. They do offer the wealthy and powerful the opportunity to manipulate the outcome. These lessons are all there to be learnt from the authoritarian regimes of twentieth century Europe.

However, we believe there are ways in which our historic system of representative democracy can be augmented without opening the door to plebiscitary democracy. To that end we are introducing new processes of democratic engagement. The British Statement of Values, for example, is emerging from a deliberative process.

We believe that new methods of engagement between government and people, including deliberative mechanisms,  can support  our system of representative democracy by encouraging involvement, reassuring people about the range of ways in which their voice can be heard and, over time, as the experience of deliberative processes ripples out through society, we believe it can be a powerful educative process about the complex demands of democratic decision- taking which in turn, should, should, lead to a greater understanding of the value of parliamentary democracy and a belief in its virtues. 

Significant challenges remain. Constitutional reforms always need time and continuing effort to become embedded in our constitutional arrangements.  And, as we continue to devolve power to local institutions, we will need to ensure that they too are properly accountable to those they serve. Many local authorities are conscientious in the way they open themselves up to scrutiny. others have a long way to go. In some the implementation of Freedom of Information legislation and scrutiny arrangements for the behaviour of councillors are risible. And local authorities are not encouraged to be more open and transparent and accountable by the often supine behaviour of local media. Local government is a fundamental part of our constitutional arrangements and we will need to ensure that every local authority is fully accountable in the way national government is becoming.

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