A new Magna Carta? - Political and Constitutional Reform Contents

6 Forms of public engagement


169  An essential element in codifying the constitution will be to have the support and involvement of the British people. Whichever model of codification might be proposed by the government, there are common factors that point to the desirability of the body designing the constitution engaging in the broadest possible process of public engagement.

170  These factors are firstly, to give moral legitimacy to the document produced and, in terms of citizenship, promote a greater feeling of ownership by the British people in the system of government and issues of citizenship the document would describe. Secondly, it would be an beneficial opportunity for a public debate on the constitution and our political system generally, to raise awareness and appreciation of the distinctive characteristics of UK constitutionalism, to establish whether or not the British people are content with the settlement of reforms since 1997, and to receive an indication of the future direction that the UK's constitutional arrangements should take.

171  In other words, separate from but supplementary to involving and engaging the public in the preparation and implementation of the codified constitution, might be a simultaneous exercise of public deliberation and debate on the political and constitutional system, as a means to engage and inform public opinion as well as to feed into the policy making processes of the government and political parties.

172  In drafting a codified constitution, the level and intensity of public engagement, and the particular procedures adopted, will to a large extent be shaped by the particular model of codification initiated by the government. A minimalist codified constitution would warrant a less elaborate process than the preparation of a written constitution with new procedures for amendment to the constitution and powers of judicial review. Certainly the greater the changes a government proposes, the more likely it is that people will want to be involved in the making and approval of them.

173  All of the options considered above for the public body that might be entrusted with the task of preparing the codified document would have public consultation processes built into their work. A factor in selecting which type of body would in fact be their suitability for undertaking the level of consultation thought necessary for the method of codification proposed by the government. It is not the practice of the Cabinet Office and Law Commission to hold public oral evidence sessions, but either would invite write written submissions and hold some seminars with constitutional experts. A parliamentary committee, Speaker's Conference, Royal Commission[981] or Constitution Commission could all hold oral evidence sessions directly from the public, as well as host some public debates and conferences. A Constitutional Convention, as considered above,[982] could operate as a prior or parallel form of deliberative body, concentrating on general principles, values and issues to underlie the future direction of reform.

174   In the case of the Cabinet Office or Law Commission, some temporary advisory sub-unit could be created for the specific purpose of informing and engaging the public, similar to the Constitutional Advisory Group set up by the Ministry of Justice in New Zealand in 2012 to inform and engage the public on constitutional issues including on the question of Mâori representation. Its underlying strategy is that "public understanding and participation is needed for enduring constitutional arrangements that reflect the values and aspirations of the UK people".[983] the chairman of the Group is Professor John Burrows, a former law lecturer and former chairman of the country's own Law Commission.

175  Social surveys indicate that the public definitely support the idea of a written constitution in principle, with the level of support shown in opinion polls varying depending on how the question is phrased. To the question "Should the UK have a written constitution?", a 2010 poll carried out by the Ministry of Justice returned 44 per cent for, 39 against, and 17 don't knows. In a YouGov poll in 2009 on whether respondents agreed or disagreed with a proposal to "devise a written constitution to replace the current unwritten constitution which has evolved gradually over the past 1000 years", 59 per cent agreed, 15 were opposed, and 26 were undecided. In an ICM poll in 2010 asking for a response to the more loaded question that "Britain needs a written constitution providing clear legal rules within which government ministers and civil servants are forced to operate", 73 per cent agreed, 8 per cent were opposed, and 19 per cent were undecided.

176  However, social surveys also show that the UK public has a low level of knowledge and understanding of the constitution and system of government. In a Hansard Society survey on "the constitutional arrangements governing Britain" undertaken in 2007, only one in five people thought they knew "a fair amount", and around one half of respondents said they knew "hardly anything at all" or had "never heard of it".[984] This low public salience does not mean that ordinary members of the public does not have views on how we are governed or the issues that are raised by codifying the constitution, but it is a factor to be taken into account in determining the manner in which meaningful tests to gauge public opinion on specific aspects are conducted. In particular, it means that formal consultation exercises are of limited use, because whilst they enable interested groups and individuals to have their say, they are less effective in terms of establishing what the state of public opinion is generally across the country. All this points to the use of deliberative techniques being particularly useful both as a means of engaging the public and learning what the true state of public opinion is.

Methods of public deliberation

177  There is now a growing science in deliberative democracy principles and practices, with a wide variety of techniques to choose from in terms of engaging the public in policy decision-making. It includes forms of mandatory preliminary instruction before any public vote is taken on a proposal; scaled referendums asking voters to indicate support for reform options on a sliding quantitative scale with the values, costs and benefits associated with each option clearly listed in the ballot paper itself; and "preliminary values questioning" asking voters about the values they already hold and which they believe should drive the future of constitutional development, thereby encouraging purposive reasoning. Preliminary results on values could be publicised and help to guide those framing the codified constitution and future reform.

178  Some interesting deliberative models have been used in other constitution building or policy-making decisions abroad. The Citizens' Assembly on electoral reform in British Columbia in 2004 comprised 260 randomly selected citizens, selected on the basis of an equal gender balance and aboriginal representation, proceeding by way of initial instruction about electoral models and different voting systems, taking extensive oral and written evidence, and then deliberating and voting on the different options.[985]

179  In Geneva in 2008 following a vote in favour of a new constitution for the canton to replace its current one drafted in the early 19th century, a people's Constituent Assembly was set up by legislation to produce the document, comprising 80 members chosen by election out of a field of 530 candidates and 18 lists. It conducted its work in five sub-committees dealing with different areas (general provisions and fundamental rights, political rights and amendments to the constitution, the three powers (legislature, executive and judiciary), territorial organisation, and the role and tasks of the state including finance and social and economic duties), and took extensive evidence from those regarded as key stakeholders.[986]

180  In Iceland a Constitutional Assembly (later termed a "Council") was established by Act of Parliament in 2010, with a membership of 25 persons chosen on the basis of popular election, for the purpose of writing a new constitution. Public consultation exercises were conducted on a clause-by-clause basis, making particular use of the internet and new social media. The written constitution it produced in this way was then approved by Parliament and at a national referendum.[987]

181  Most recently, in July 2012 a Convention on the Constitution was established by resolution of both Houses of the Oireachtas (national Parliament) in the Republic of Ireland to make recommendations on a series of constitutional reform issues (such as reducing the voting age to 17 years, reducing the presidential term of office to five years, and reviewing the Dáil electoral system). The Convention consisted of 100 people, being 66 citizens who were eligible to vote selected at random and balanced in terms of gender, age and region, and the remainder being parliamentarians nominated by their parties in proportion to their relative strengths in the Oireachtas, one representative from each of the parties in Northern Ireland, and an independent chairman appointed by the government. The convention held a large number of public hearings throughout 2012-13, and appointed an Academic and Legal Support Group to provide expert research and reports to support the work and deliberations of the convention. Its terms of reference required it to report within 12 months of its first public hearing, with the government undertaking to respond to each of the recommendations within four months and, if accepting a recommendation, to indicate the timeframe it envisaged for the holding of any related referendum.[988]

Creative use of referendums

182  Referendums as a means of public engagement may be used in a number of ways. The simplest is by giving citizens a final vote on the entirety of the proposal, in our case the draft of a codified constitution. However if there was any division between or across the parties on the content of the document, or it was decided to put alternative models to a vote, it is most likely that none of the codified documents would gain majority support in a single vote. A reform process of this kind has been tried in recent decades in Europe, Canada, Australia and elsewhere, and often failed through presenting voters with extensive amending provisions in one referendum. Too many details provide too much for citizens or interested parties to dislike. Having found at least one undesirable detail, even voters who are neither purists nor perfectionists are likely to vote against the whole reform plan.[989]

183  A second model would be for a "preliminary values questioning" in advance of the work drawing up the codified constitution, requiring people to give preliminary endorsement to an outline proposal.[990] They could be asked to vote on the principle a codified constitution, and invited to rank in order of preference their support for a number of different elements of the proposed document in broad outline. However, the level of truly deliberative voting involved here is limited, and if presented with too many options in broad outline, voters are likely once again to be overwhelmed and unable to decide meaningfully on not one but many unfamiliar subjects.

184  A third model could be to have staggered referendums at different stages of the draft document's preparation over a one or two year period. This method would allow people to become better informed as the public debates progressed, and allow for reflection. A different vote could be held every three or four months, and on each occasion a preliminary values question and a discrete section of the codified constitution could be put in draft outline. Such a process would realistically need to be conducted by electronic voting, rather than using the traditional method of the ballot booth. The internet has now made e-voting perfectly feasible and cost effective, and has been trialed in several western democracies including Belgium, France, Germany and Italy as well as in the UK itself (for local elections). If such a scheme were envisaged, it would be best advised to clearly set out the schedule of votes at the outset, to ensure that all key elements of the codification plan would be put to the vote, and also guard against the voting events appearing uncertain and disengaging the public.

Permanent public engagement bodies

185  If governments and parliamentarians wish to promote greater public engagement in shaping the present and future constitutional arrangements of the country, a virtual pre-requisite is to set up new schemes established on a permanent basis for promoting better public understanding, knowledge and information about the political process, citizenship and constitutional issues generally.

186  Some initiatives of this kind already exist, such as the Parliamentary Outreach Service that was set up with the Speaker's endorsement in 2012. This Westminster unit aims to spread awareness of the work, processes and relevance of the institution of Parliament, encouraging greater engagement between the public and the House of Commons and House of Lords. It delivers free training explaining the work of Parliament; promoting engagement with Select Committee inquiries; showing how the public can get involved with legislative scrutiny; and demonstrating Parliament's relevance to each part of the UK. It collaborates with Universities and external bodies including local community groups, businesses, national campaign networks, and charitable bodies or societies concerned with the workings of parliamentary government.

187  A new Constitutional Commission, as described above, could play a leading role in this respect. Not only could the remit of such a body be to undertake inquiries, research and reports into constitutional affairs, on a reference from the government or otherwise, but it could perform an important educative role and have a specific responsibility to promote public participation through public education. Its delivery of such aims could include establishing a website for sharing information and ideas on constitutional issues; cultivating links and engaging not only with persons and bodies with a special interest in constitutional affairs but civil society groups operating in the field of public affairs or citizenship (including social welfare groups, professional or trade organisations, church groups, and student groupings); and hosting regular panels and conferences on current constitutional issues.

981   The Royal Commission on Reform of the House of Lords (1999-2000), despite its lack of eventual impact, pioneered an impressive consultation process which included receiving 1,734 pieces of written evidence and holding 21 sessions of public hearings attended by 1,026 people in London (twice), Exeter, Peterborough, Newcastle, Manchester, Birmingham, Edinburgh, and Cardiff. Back

982   See paras. 55-52. Back

983   This is the role of the New Zealand Constitutional Advisory Panel: see its Engagement Strategy for the Consideration of Constitutional Issues (May 2012).  Back

984   An Audit of Political Engagement 5 (2008). See Blackburn, Case Studies, T; and also Ministry of Justice, People and Power: shaping democracy, rights and responsibilities, March 2010, with the results of a programme of deliberative events with members of the public on constitutional change including the potential for a written constitution. Back

985   On the British Columbia precedent, see ancillary Case Studies, Case Study V. In the UK, Sir Menzies Campbell when leader of the Liberal Democrats in 2007 proposed a Convention on a written constitution to restore public faith in politics, in which he suggested half of The membership should be chosen by random lot: "A Rescue Plan for Politics", The Guardian, 6 September 2007. Back

986   For a detailed account see Blackburn, Case Studies, M. Back

987   For a detailed account see Blackburn, Case Studies, O. Back

988   For a detailed account see Blackburn, Case Studies, Q. Back

989   See generally X. Contiades (ed), Engineering Constitutional Change (2012); and D. Oliver and C. Fusaro (eds), How Constitutions Change (2011).  Back

990   On this and deliberative voting techniques generally see Blackburn, Case Studies, V. Back

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Prepared 10 July 2014