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
|
