The Ministry of Justice has done something extremely useful! It has demonstrated that, given a fair wind, deliberative democracy could become a valuable addition to our representative democracy with liberating consequences for individuals and unifying consequences for our community as a whole. This demonstration is encapsulated in a report prepared by TNS-BMRB for the MoJ and published by it on 30th March.
The title of the report is ‘People and power: shaping democracy, rights and responsibilities’. At this point I must declare an interest: TNS-BMRB is a part of the TNS group which is a part of the Kantar group which is a part of the WPP group. I am one of WPP’s two advisory board members.
The report, which I am not going to summarise (its 55 lucid and easily accessible pages are worth reading) outlines the main findings from a ‘guided’ programme of deliberative events held in late 2009 and early 2010.
That programme results from a commitment made by the government in its Green Paper of 2007 The Governance of Britain to ‘develop a wide public debate to help set out the ideals and principles that bind us together as a nation.’ And that commitment was followed up by the Justice Secretary, Jack Straw, in March 2009 when in a further Green Paper Rights and responsibilities: developing our constitutional framework he launched a debate on the possible adoption of a UK Bill of Rights and Responsibilities.
The introduction to the report states that at the heart of the deliberative events, which were part of a wider consultation process on values, rights and responsibilities, were three issues:
- The potential for a written statement of values.
- A proposed new Bill to protect and enhance the rights and responsibilities of citizens.
- The need to consider the balance of power and accountability between the government, Parliament and the judiciary, and examine the potential for a written constitution.
The study of these issues which, in the words of TNS-BMRB, ‘can be viewed as a constitutional experiment in deliberative democracy – with the deliberative method helping to inform representative systems of government and promote democratic legitimacy’ used a methodology which is set out in the report. This includes an explanation of how the 500 people participating in the deliberative events were chosen. The methodology involved, in its provision of information to those participants, filmed talking heads and live presentations by named people explaining contrasting expert views about a variety of subject areas.
Those areas included values, civic, political, economic and social rights, a written constitution and the ‘putting of responsibilities at the heart of public policy development’. It is unfortunate that the voluminous appendices to the report, illustrating how the methodology was applied and how guidance (agreed with the MoJ) was given, do not include those presentations. They must have been influential and we could all learn from them.
From my reading of the report of what happened and the conclusions reached - which are summarised in four pages – two things leap out.
The first is that, given the opportunity, our fellow citizens behave with decency, responsibility, fairness and common sense in their grasp and consideration of complex and interrelated issues. An example was the extensive consideration by the deliberators of whether economic and social rights should be justiciable – in plain terms, enforceable through the courts.
Their conclusion, which seems to me to be sensible, is that the inter-play between values on the one hand and rights and responsibilities on the other, in the context of a dynamic and changing society which wants flexibility, drives the view that there has to be a ‘continuum of enforceability’ ranging from declaratory status (for some rights) at one end to full legal and unalterable status at the other. And that where a particular right falls may change over time.
The second is that dogs must not be encouraged to chase false rabbits. The first two of the issues identified in the introduction to the report, values and rights and responsibilities, were given a full airing. The third, a written constitution, was not. Even worse, the very limited discussion of the topic was kept within a narrow confine. Whether this stemmed from a lack of time, the way in which the MoJ influenced the guidance given to the participants or a failure by TNS-BMRB to grasp what the topic was about, we will probably never know.
The explanation may be simply that the ‘written constitution’ question (which did not fit very logically with the other topics) had been added to the list for reasons of political spin and presentation. There is some evidence for this. One of the three issues said to be at the heart of the deliberative events was ‘The need to consider the balance of power and accountability between the government, Parliament and the judiciary, and examine the potential for a written constitution’. The shift from this to ‘Who do you most trust to protect your rights, government, Parliament or the courts?’. as the ‘guided’ way in, the entry point, to consideration of the merits or demerits of a written constitution, is weird, to put it mildly.
That shift, which may have stemmed from a confused attempt to demonstrate relevance, unsurprisingly left the deliberators ‘undecided’ and ‘struggling to make the connection between a written constitution and improving levels of trust between the public and the government, MPs and the courts’. It also admitted some other odd ideas reflected in the guidance and in the deliberations. Two which caught my eye particularly were: the courts (only) are bound by rules of law and, those who are not elected are not democratically accountable.
There is some barely discernible evidence that some deliberators remarked that before thought was given to whether our constitutional arrangements should be written down it was necessary to decide what those arrangements should be and how to how that decision should be made. Quite right! The introduction ends with the following ‘Overall, at the heart of this study is an important constitutional question – how the relationship between the citizen and the state can best be defined to protect fundamental freedoms and foster mutual responsibility.’ I would add ‘And to reflect that the state belongs to its sovereign citizens – we the people.’
The failure to mention, in defining what was to be explored –and why, that deliberative democracy is one way of giving practical effect to popular sovereignty suggests, unavoidably, that the politicians in the MoJ wished to duck the point. With that at the back of my head, I found it difficult to avoid the conclusion that a ‘guiding hand’ in the fashioning of the whole exercise saw it as about how those governing the state could devise a way of ascertaining from the state’s subjects how to proceed with matters in a way likely to meet with popular approval. That tainted political approach is a very long way from replacing ‘parliamentary’ (in reality ‘government’) sovereignty with the sovereignty of ‘the people’. And that is what the ‘written constitution’ question is really all about.
Still, it is better to have the curate’s egg than no egg at all! The decision to commission this work was brave and we can all benefit from the result. The final words of the report are: ‘ In the wake of recent controversies, there is now an ideal opportunity to build on the platform provided by this study and explore wider constitutional reform to help reinvigorate democracy and our sense of who we are.’ I agree with that.
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