Joint Committee on Human Rights Minutes of Evidence

Examination of Witnesses (Questions 120-159)


28 JANUARY 2008

  Q140  Chairman: By consulting my constituents on all sorts of things.

  Professor Smith: A lot of that is down to your opinion on the nature of a representative, is it not? Something like establishing a Bill of Rights is a constitutional moment. This is a Bill that will structure the way that we govern. Therefore, it is a particular event. There are people who write in this area who ask, "Are politicians and perhaps even appointed officials the best people to make judgments about a Bill that is going to limit their activities?" Are they best placed to do that because it is going to affect the nature of their work?

  Q141  Earl of Onslow: I see a Bill of Rights as a Bill which limits politicians and the state's abilities, not something that limits the ability of the subjects to do what they want.

  Professor Smith: I agree with you. The return on that is saying are the people who are going to be limited the people who should be making a decision about where those limits are?

  Q142  Earl of Onslow: No. They are going to complain like hell. What in your view are likely to be the most effective methods for engaging the public in a meaningful debate? How would you do it, in other words?

  Professor Smith: If I was given carte blanche, how would I do it?

  Q143  Earl of Onslow: Yes.

  Professor Smith: I believe the idea is to establish an independent commission. That is what I have heard. First of all, it is important who is on that independent commission. If you take the Victoria example which is seen as reasonably good practice in this regard, it is not a commission which acts like a select committee might here which asks for consultations to be sent in but actively goes out and engages with those communities where those communities are, not expecting everybody to come to London or whatever. They spent six months going around Victoria, meeting groups, particularly hard to reach groups. If you are going to set up an independent commission, that is how that independent commission should act. I also think there is room for what I discussed earlier, this idea of a citizens' assembly that is protected from political and social pressures. We might have to agree to disagree on this one, might we not? The reason why is because you learn a lot from allowing citizens to deliberate with each other under conditions when they are not being influenced by the pressures that normally would structure their decisions. When you go out to do a consultation, most of the people who are going to engage with you are people with a very strong interest in that area, unless you do what Victoria and others have done and go to a much lower level and engage with groups there. If you want to hear the voice of the informed public, how are you going to get the voice of the informed public? That is where these sorts of assemblies may have a place. I am not necessarily arguing you do what they did in British Columbia or to then say, "Whatever that assembly comes up with, that should be the Act." I think there is a role for that kind of forum because it gives a different sort of input from the input that comes from interest groups.

  Q144  Lord Morris of Handsworth: How do you keep the pressure group out of that debate?

  Professor Smith: You do not keep them out of the debate. I will go back to British Columbia. The assembly met maybe every second or third weekend over the period of about 11 months and also engaged in a consultation exercise during the middle of that period. They would meet and learn about issues. Part of the learning about issues was being exposed to the arguments of interest groups who would come and be witnesses and be cross-examined. Those witnesses would then leave the room and those citizens would then be able to deliberate amongst themselves about the issue at hand. It is not that you protect them in the sense of saying that they do not hear those arguments. What you are saying is that if you have a consultation exercise where policy professionals are in the room, they dominate. My argument is you do not get the informed view of citizens then.

  Q145  Earl of Onslow: How do you choose these people?

  Professor Smith: In British Columbia and also the practice with citizens' juries and deliberate opinion polls, it is based on a form of random sampling. In British Columbia they decided they wanted a man and a woman from each electoral area within the province. They decided that they wanted to ensure that there was age difference amongst those selected. They also added two indigenous people at the end because they realised the process had not managed to do that. Other juries have selected on the basis of ethnicity. Others have done it on the basis of social class. There are different ways of doing it. You do it on the basis of what you take to be politically salient characteristics. You produce a statistically representative sample of the people. That is as good as you can get.

  Q146  Earl of Onslow: The people of the electoral district have no choice in who is going to make up ----?

  Professor Smith: The traditional mode of accountability that you are familiar with with the Westminster system is a different process. Again, remember, I did not necessarily say that you would give that group the final say. I am just saying that would be an extremely interesting input and the kind of input, if I was creating policy, I would like to see. We are always making claims on what informed public opinion is. In fact, most of us have no idea what informed public opinion is. Creating those kinds of forums allows you to do that. As well as, I would argue, going down to community groups to find out what sorts of issues are raised at that level as well. Take the Westminster Village here. People listen to each other and they take that to be public opinion but it is not informed public opinion.

  Q147  Lord Dubs: It seems to me a lot of the legislation on our statute book has component elements in it which could be part of a Bill of Rights.

  Professor Smith: Of course.

  Q148  Lord Dubs: Yet none of that went through the process you have mentioned—in other words, the Human Rights Act and so on. Does that mean that legislation has been flawed?

  Professor Smith: Some people would say it is less legitimate in many ways. I was reading through some of the previous evidence given in previous sessions and I noted that somebody said, when the Human Rights Act was enacted, there was no real leadership or public debate around it. It was just enacted. It meant there would be no opportunity to raise public awareness. People did not really understand the Act. They did not know what it meant. They did not know how it worked. There was a lack of public understanding. Part of the process of public consultation is raising public awareness and understanding. The other part is legitimising a decision.

  Q149  Earl of Onslow: The legitimacy of passing the Human Rights Act was that the Labour Party had won an election and part of its manifesto was that. That seems to me an absolutely rock solid piece of legitimate Act passing.

  Professor Smith: Do you think that if you went back to all the Labour voters they would be able to say, "I voted for Labour because of the Human Rights Act and I know what it means"?

  Earl of Onslow: No, I am not saying that. The point is that people have chosen who they wish to govern them. Under those circumstances those people have a mandate to do it and the difficulty with all these—

  Chairman: We can contrast this argument with the devolution argument where it was party policy to go down that route but it was carefully prepared with the big debates beforehand, consultation and a referendum in London and also in regional government where, despite all the efforts, the north east voted against it. I suppose I am supporting Professor Smith here in saying that part of it is preparing the ground and arguing the case. Just because it is in the manifesto does not mean to say that that is the end of the story.

  Q150  Earl of Onslow: I am not saying what my views are.

  Professor Smith: I will take the devolution example. People knew what they were voting for if they were voting for Labour on the basis of devolution. But there are a hundred reasons why people voted.

  Q151  Lord Morris of Handsworth: Was there not a Scottish Convention established to prepare through the formality of the process?

  Professor Smith: Yes.

  Q152  Lord Morris of Handsworth: There was a preparatory exercise which ensured that by the time it reached the wider public opinions were settled.

  Professor Smith: Yes. This goes back to what was being said earlier about the political emphasis behind it. The interesting thing about the Bill of Rights here is that there is not a massive cry for a Bill of Rights at the moment. Most of the Bills of Rights that emerge come out of some form of constitutional conflict. We are in a very unusual position here. So you are going to have to drum up some interest in a way that you do not have to in Northern Ireland or you did not have to in Scotland with devolution.

  Q153  Lord Morris of Handsworth: We will leave it to the government to drum up some interest.

  Professor Smith: They are very good at that. Going back to the earlier point, in no one's manifesto as far as I remember was there the argument that there was going to be a Bill of Rights. We are in a very unusual situation. Unless we take your Burkean view, which is that people have voted for an individual to make their judgment whatever, people voted when they did not know there was going to be a Bill of Rights and maybe that might have affected their votes. I do not know.

  Q154  Earl of Onslow: I think you can argue that there is no likelihood of a Bill of Rights being enacted before the next General Election. At the next General Election I strongly suspect that probably in both parties' manifestos there will be a commitment. What we are doing is part of the very correct part of the consultation process which you rightly believe to be so important.

  Professor Smith: I think you do need to actively engage citizens in this because it is going to pass them by otherwise in the same way that the Human Rights Act has passed people by. And the misunderstanding of it has created all sorts of problems with the kinds of things that you hear in the media, The Today Programme, Radio 5, the phone ins about what the Human Rights Act has done or is going to do. People just do not know what it is. Part of the consultation process is raising awareness as much as it is about getting informed opinion about what should be in it.

  Q155  Dr Harris: Although I am no expert on the Liberal Democrat manifesto, I believe it has been a longstanding manifesto commitment to bring in a Bill of Rights and I commend that document to you for your research so that you are in a position to know what the parties are doing.

  Professor Smith: Unlike your colleagues!

  Q156  Dr Harris: I will direct myself to it as well. In contradistinction to the argument that the government has a mandate to do things the government is elected to do, simply because it is elected, in the case of devolution as Lord Morris rightly said there was more of a consensus and of course more than one party was calling for that. In a system we have at the moment where 35 per cent of that relatively low number of people who turn out to vote vote for the party that has a majority, would you agree it is harder to argue that there is a mandate based on 35 per cent of a 63 per cent turn out?

  Professor Smith: You are trying to tempt me into discussions of electoral reform here, I think.

  Q157  Dr Harris: I am talking about the nature of the mandate.

  Professor Smith: I think it relates to something else as well. I think you are right there but also, it related to the level of public dissatisfaction and distrust in Westminster politics and in politicians and political institutions. I see that the kind of consultation exercise that some states and provinces have gone in for can be part of the process of re-engaging citizens in the political process. What can be more important than what is in a sense a founding document that describes the relationship between governed and governors?

  Q158  Earl of Onslow: That question has set a lot of hares running. If you think that engaging the majority of people is difficult, is it not infinitely harder to get minority interests engaged? I have the normal, standard black and minority ethnic communities down here.

  Professor Smith: That is why the Chair talked about why the process is important. I would say process is absolutely important. If you do a bad consultation then you fail to engage hard to reach groups. If you engage people who know those communities, then yes, you can do it well. It is a question of who is organising the consultation, how committed they are and importantly how many resources—I am talking about time and money here—they have to spend on this. There is no reason to say that a consultation process could not be established that engaged black and minority ethnic communities and other vulnerable and hard to reach groups. Again, I refer you back to the earlier idea of a randomly selected public. You ensure that minority groups are there. You can even over sample them if that is your decision.

  Q159  Baroness Stern: The government is proposing to have a public debate and it has announced the creation of a Citizens' Forum. Professor King at Essex University has argued that a Citizens' Forum would invariably attract the elderly. I do not know what is wrong with that. It would invariably attract the elderly, the male, the white, the middle class and the people with both bees in their bonnets and time on their hands. Assuming that the government really does want to consult and within our context in the UK, what sort of body should be established that would be useful in considering the range of options and making recommendations?

  Professor Smith: In some sense I agree with what Professor King is saying if he is saying that the Forum would be similar to the other kinds of forums that have been run recently by the government. They will be highly unrepresentative. They will tend to attract people who are all politically active. That is why again I would suggest that the government seriously considers alternative forms of organisation like a randomly selected forum in order to ensure that you have different types of voices in there and to ensure that you do not just get the politically active. That, I would imagine, would be run alongside a consultation process that went out to groups. One of the problems with the Citizens' Forum is always that these mythical citizens are expected to come to you. Lots of people do like coming to London but this is not always the best way of hearing marginalised voices, particularly from poor communities etc. I would suggest again that serious consideration is given to setting up some sort of citizens' assembly which is randomly selected, stratified along significant characteristics and that runs alongside a consultation exercise which not only consults with the interest groups within this area but is a commission that actively engages with hard to reach communities and goes to speak to them on their turf. It is time and money though again.

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