Joint Committee on Human Rights Minutes of Evidence


Examination of Witnesses (Questions 131-139)

PROFESSOR GRAHAM SMITH

28 JANUARY 2008

  Q131 Chairman: We are now into our second session of the afternoon and we are joined by Professor Graham Smith of the Centre for Citizenship and Democracy. Welcome to you. Is there anything you would like to say before we start?

  Professor Smith: One thing to stress is I assume the reason I have been asked to come and talk to you is not because I am a human rights specialist, because I would never claim that. If you start asking me details of Human Rights Acts and those kinds of things I am going to have a bit of a problem. My background is mostly studies of public participation so I hope that the reason I have been invited to come here is to talk about methods of public participation, pros and cons and different structures that have been put in place elsewhere.

  Q132  Chairman: That is exactly why.

  Professor Smith: Then we are on the right wave length.

  Q133 Chairman: What do you think are the key lessons for the UK that can be learned from looking at democratic innovations around the world?

  Professor Smith: What is very interesting at the moment is I think we are going through a period of a lot of experimentation with public participation in a way that we maybe had not done a decade ago. There are some really interesting examples of where governments have taken quite bold steps to engage the public in innovative ways which take us beyond simple, traditional modes of consultation. The one that pops into my mind here is what happened in British Columbia and Ontario. They were not looking for whole scale constitutional change but they were looking to change their electoral system. Politicians being politicians could not decide what the best electoral system would be, as we would witness in our own Parliament. They decided that what they would do was set up an assembly of 160 randomly selected citizens from all over British Columbia and they would let them learn about the issues, deliberate, consult themselves with the public over an 11 month period so they would become "experts" in electoral form. They put a recommendation forward. They recommended a change and the government had agreed that if there was a recommendation for change that would go to a referendum, something completely different from what we would be used to. There are what I take to be quite amazing experiments going on in advanced liberal democracies.

  Q134  Chairman: Are they getting it right?

  Professor Smith: No. That is the interesting question. The referendum was lost in British Columbia but only by two per cent. They are going to rerun it because they had two thresholds, one which was based on winning in a number of localities and that was fine, but they hit 57.7 per cent rather than 60 per cent overall so it was very close. The answer may be that people do not want electoral reform or that people do not want a new Bill of Rights. That is one answer, is it not?

  Q135  Chairman: What was the turn out like on that referendum? If you have had this huge public engagement process, what sort of turn out do you achieve generally?

  Professor Smith: I am afraid I would have to give you the details of the turn out. There was a lot of criticism of the government that they supported the assembly but they did not support the public debate that followed it. One of the criticisms is that a lot of people were not aware of the assembly. They did a very good job in institutional design but not in publicity.

  Q136  Chairman: That begs the question is the process as important, more important or less important than the outcome?

  Professor Smith: It depends where you stand, does it not? I think it is critical, if you are going to look at something at this level of potential impact on a political system, that the process is carefully constructed. I am not necessarily arguing the case for the British Columbia method; I am just saying that that is an example of the sort of thing that was done. If you are going to look at creating a Bill of Rights that shapes the relationship between the governed and the governors, the process by which that is brought about is incredibly important.

  Q137  Chairman: Let me give you a couple of examples. One is human rights, although you would not see it in those terms. If public consultation produces a significantly weighted outcome in favour of something, to what extent is it necessary for politicians to respond, even if it is the wrong thing to do? Suppose we had a referendum on the death penalty, for example, and it came out with an enormous majority in favour of restoring the death penalty, clearly in breach of our European Convention rights and probably contrary to what informed opinion would hold in this place. How do you square the circle?

  Professor Smith: Would a state hold a referendum on that because it would be limited by the Convention of Human Rights? We would not have held a referendum on that issue but I understand your point. I am not arguing the case for a referendum necessarily. You asked me whether there had been any interesting practice and I was saying that this was an example.

  Q138  Chairman: This came out of the previous discussion. We heard for example that support for social and economic rights was generating 80 per cent approval in opinion polling; yet some politicians were extremely nervous about it. If you did the same thing on the mainland, I suppose a lot of politicians here across the political persuasions are nervous about it because of the implications of changes or whatever. How would you try to square that sort of circle?

  Professor Smith: Surely part of the consultation process is a desire to know what citizens believe?

  Q139  Chairman: If citizens come up with something that you do not like and you do not think is workable, do you run the risk therefore of undermining the wider political process by creating this groundswell of opinion that you cannot deliver?

  Professor Smith: It is interesting that you use the term "groundswell of opinion" because sometimes I know that consultation exercises are so badly organised that this groundswell of opinion is often not informed opinion. It is constructed by particular political groups. That is why the sorts of things that I was talking about in British Columbia were quite important because they gave citizens a chance to develop reflective opinions. We do opinion polls all the time. We ask people about things they have not thought about. What does that mean? I do not understand how useful that information is. It is just people's raw preferences. That is why I think the process is crucial. Another example you might want to talk about is the example in Victoria where they had a commission that went around over a period of six months engaging in consultations with local community groups etc. They were criticised because the agenda that they had been set by the government in Victoria ruled out social and economic rights, so they got a bit of a backlash on that particular issue. It is a difficult one. If you are planning to engage in a consultation process and you do not want to hear what people have to say, I would say don't engage in a consultation process. I would think very carefully about how you construct that consultation process.

  Earl of Onslow: Additional to that, are we back with the great Burke address to his Bristol electors, "You elect me for my judgment". The people of Hendon very wisely say that our chairman is a splendid chairman and he shall represent them in Parliament. They ask him to take decisions. How do you square that one with modern, participatory democracy, which is terribly important?



 
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