Joint Committee on Human Rights Minutes of Evidence

Examination of Witnesses (Questions 160-179)


28 JANUARY 2008

  Q160  Baroness Stern: Do you see merit in specialist representatives of different civic society groups being able to debate with political parties in a single grouping?

  Professor Smith: Do you mean like a constitutional convention or something like that?

  Q161  Baroness Stern: I suppose I do.

  Professor Smith: What those sorts of events can do is at least make clear where the differences are. That might be something which is useful as a precursor to public engagement, where people are clear where different groups stand. One would hope that the kind of consultation document that was produced and the consultation materials that were produced would fairly represent where differences were. Would I want to see that being the only mode of engagement? No, because I think representatives of peak associations are not representative of citizens. They are citizens but they are not necessarily representatives of public opinion. One thing we know about organisation is that some communities find it easier to organise than others so whoever happens to be there at the time very much represents who is politically and economically able at that particular time.

  Q162  Lord Morris of Handsworth: We take as a given your strong support for public engagement on major constitutional issues. What I am not quite clear about from what you have said to us so far is who should do it.

  Professor Smith: Do you mean who should organise it?

  Q163  Lord Morris of Handsworth: Who should be involved. Can I ask whether you think the consultation process should be independent of government?

  Professor Smith: Yes.

  Q164  Lord Morris of Handsworth: Who, in your view, should lead the process?

  Professor Smith: You need to have probably cross party support for a small commission if you are going to approach it that way. The easiest thing to say about a consultation exercise is that it was skewed from the start. You need to be careful. I noticed in Australia, in Victoria, they selected a professor who was well known in the media, who does not have party affiliations. They picked someone who was very active in the voluntary sector. They picked someone who was coming into politics but had been known as a basketball star. Why not? They engaged a QC as well. They did not get accused of political bias. The feeling was that the different views of political parties were represented in that group. What they were criticised for was a failure to have black and ethnic minority voices and indigenous community voices. It is crucial that the construction of that commission is really carefully considered. The last thing you want is for that commission to be seen as a puppet of the government.

  Q165  Lord Morris of Handsworth: What I draw from your answer is that you can take steps to make the process independent of government but, from what you have said, it does not sound to me as if it would be independent of politics if the government or whoever appoints this cross party grouping is still political.

  Professor Smith: That is one of the arguments that politicians in British Columbia made for saying, "Let us create this assembly that is protected from politics in that way." They made the decision that, whatever their recommendation, that would then go to a referendum. I feel that is not the kind of thing that this government is going to accept. A more realistic solution is trying to find people who have good public standing, who are seen as trustworthy. There are some of those people still left. You have to be so careful because if that commission is poorly chosen that becomes the focus of anybody who does not agree with what is coming out.

  Q166  Lord Morris of Handsworth: Shortly this Committee is due to spend some time with the Equality and Human Rights Commission. Do you think there is a role for that body in the process and, if so, what should their role be?

  Professor Smith: I would argue there is a very big role for an organisation like that that has a lot of knowledge of issues facing very diverse communities who would feed into a consultation process. But also, I would argue, probably as an organisation that could point a commission towards people who could help them access hard to reach groups. The organisations that have been amalgamated into the Equalities and Human Rights Commission are organisations who do, to a certain degree, know their communities.

  Q167  Lord Morris of Handsworth: Do you think the Commission could still play that role and preserve its independence?

  Professor Smith: Yes. I do not see any problem for it in terms of my second point which is giving access to those communities. In terms of my first point, I would have thought there were very technical issues that the Commission would want to put forward. The work of the CRE and other organisations before may not have been political in a party political sense but it was political in the sense of the types of issues they were raising. I cannot see any problem. I would not suggest that that organisation is an organisation be charged with being the Commission to lead the consultation process because I just think it is too controversial an organisation.

  Q168  Earl of Onslow: We heard earlier on that the Victorian Government in Australia had a six month consultation, six months to do it and did it. The Northern Irish people have been banging on in a slightly Irish way ad infinitum. How would you get round those two problems? Do you think that the Australian way is the way to do it?

  Professor Smith: As the speakers before said, Northern Ireland is a very particular case. What they are trying to do is part of a larger process. Victoria is a bit more like the situation here which is that there was a decision that they should investigate whether there should be a Bill of Rights. Because that was the first question: should there be a Bill of Rights? 90 per cent of people who were consulted said yes. Our situation in many ways is more similar to Victoria although we have to deal with the Northern Ireland issue. I have noticed in your discussions you could not decide whether it was a UK Bill of Rights or a British Bill of Rights. I do not know what the decision is on that one but it would seem to me that, because of the fact that we are in a stable political position generally, we are similar to Victoria. We are trying to create a document where there is not necessarily a groundswell of demand for it. We do not have that kind of political conflict which is underneath it.

  Q169  Earl of Onslow: The corollary of that is that if you do set these time limits and the consultative body comes to no conclusion, you then say that obviously it is not necessary to have a Bill of Rights, do you, or would you give them more time or what? Am I being illogical?

  Professor Smith: No, you are not. Six months is probably too short because we are talking about Victoria compared to the United Kingdom and a difference in terms of scale and numbers. I think you can give a commission a charge for what it is expected to do. In Victoria they came up with a draft bill which they gave to the government. I can imagine a situation where you could have a draft bill and if there was a disagreement amongst the commissioners you would say, "These are the areas of disagreement." That would be an extremely worthwhile thing to do. What happened in Victoria was that there was general agreement within the confines of what the government allowed them to do. For example, there was criticism that there could be little substantive discussion of social and economic rights. That was a decision that was made that framed the debate. That is something you need to be aware of. When you start a consultation process, how do you frame the debate? What is allowed to be discussed and what is not has to be explained to citizens; otherwise, they are going to say, "Why cannot we talk about this particular issue?". You have to be careful about the scope of the consultation. You have to ensure that hard to reach groups are reached and that the consultation is well resourced. One of the problems with government consultation is that they have tended not to resource consultation very well. If you are going to do it, do not do it badly.

  Q170  Earl of Onslow: Should the process be aimed at achieving a broad consensus or, if there is not consensus, should a fairly large minority be ignored?

  Professor Smith: In the end, that is a political judgment. That is part of the decision about the scope of the consultation process. If you are looking for 100 per cent consensus, you are not going to get it. In Victoria they were extremely pleased at a 90 per cent consensus. If you find that you have a consensus except for one particular social group all of whom think it is a bad idea, then you need to be thinking quite carefully.

  Q171  Earl of Onslow: This is like God arguing with Abraham over Sodom and Gomorrah, is it not? Peradventure there will be just one man in all of Sodom and he starts at a much higher level. At what level do you start ignoring the minority?

  Professor Smith: I cannot give you an answer to that. That will be part of the work of the Commission to ensure that in any result it produces it expresses quite clearly if and where there were systematic disagreements within a particular community. Because of the type of political system we have, this is going to be something that comes back before Parliament, so that people are aware of where any divisions lie.

  Lord Dubs: I am a bit nervous of asking this question on a day when the Commons are discussing the Lisbon Treaty. Do you think a popular referendum should be part of the process?

  Chairman: Not the Lisbon Treaty.

  Q172  Lord Dubs: You have talked a lot about the method of consultation. I ask the question without any personal enthusiasm, but still.

  Professor Smith: It is an interesting question. I have no firm answer for you. It very much depends on what we are doing. My feeling is that on this particular issue, because there is not political conflict around it and it is not a salient political issue in that sense, if you had a referendum you would get a pretty poor turn out, to be honest. It is not like devolution. What you are talking about here is, in a sense, moving a few things around from other bills, maybe adding a bit extra but making sure that you have the right things covered in one document. The worst things are referendums that have incredibly low turn outs. I just do not see this as an issue that is going to capture the public imagination in the same way. The only way I could imagine it could capture the public imagination is if you did something really innovative in the consultation process. Even then I would be concerned that people would not necessarily use the referendum for the reason of looking at that particular legislation. It may well be more of a case of being able to vote on a range of other issues. That is part of the public information process. I often am a supporter of referendums. It just depends very much on the issue. I feel on this issue we are not facing political conflict here at the moment, but I would like to see clearly that public engagement has an effect. This is one of the problems that public authorities have. They engage people and there is no clear relationship between the engagement they have and the decision that is made. Some of the best local authorities were looked at by the Audit Commission and in 75 per cent of the decisions they made they could not show how the consultation related to the decision. They just did the consultation because that was what was expected of them. If you are going to do it, do it well. If not, do not.

  Q173  Chairman: You mentioned the importance of the process. What about the issue of the content? Supposing there is something very innovative in the content—social and economic rights for example—would that make a difference? I am trying to draw a distinction between what you said about the importance of the process in terms of generating turn out and innovation in that respect. Equally, if there is significant innovation in the content—for example, social and economic rights, environmental rights, horizontal rights—would that make a significant difference?

  Professor Smith: The difficulty for me with a referendum is that it is yes or no to everything. There is no sensitivity there. We have no idea whether people are voting it down because they just do not like the government, because they do not like the environmental rights or whatever. It is a very crude way of making a decision. If you are saying something like, "Should we change the electoral system?" that is very simple. When we are talking about a Bill of Rights which contains so much, unless you can think of a very careful way of doing the referendum so that you can work out what it is people are arguing against, almost doing it clause by clause, the referendum may not be the right way of doing things.

  Q174  Chairman: If you were to look at the Lisbon Treaty as an example, putting aside what people may or may not have promised, that answer would be that it would be rather silly to have a referendum on the Lisbon Treaty.

  Professor Smith: If we can show that something has major constitutional change, there are stronger arguments for referendums.

  Q175  Chairman: A Bill of Rights would.

  Professor Smith: Take the Australian referendum to become a republic. I think public opinion was that a republic was a good idea. They voted against it because of the format they were given. They did not want a president. They were given no choice, so lots of people voted it down because of the method of selecting a president. The problem with a referendum that we need to get around in some ways is, when people vote no, what is it they are voting no against? Unless you are willing to have quite a complicated referendum which started with say a minimal Bill of Rights and a maximal Bill of Rights. With the Lisbon Treaty it is not entirely clear to people what they would be voting on. It is a bit like the Human Rights Act. The amount of misinformation and misunderstanding around the Lisbon Treaty means that people do not have an informed opinion about it. If you have a referendum process, which I am not necessarily against, we have to make sure that there is a process of public education. I think we do not have that very well established at the moment.

  Q176  John Austin: Was there not an example given earlier, the Canadian example, where you got a body of people together to create an informed opinion?

  Professor Smith: Yes.

  Q177  John Austin: You then had an informed opinion, put it in a referendum and it was lost?

  Professor Smith: Yes. Most commentators say the reason it was lost is because the government did not put enough money into publicising it. When people were asked, "Do you agree with the Assembly's recommendation?" most people were voting without knowing even what the Assembly was.

  Q178  Earl of Onslow: How do you know that most people did that?

  Professor Smith: Because they did polling afterwards. The question was something along the lines of, "Do you agree with the Citizens' Assembly's recommendation that we should move to a single transferable vote?" and the pollsters afterwards said, "What did you vote? Do you know what the Citizens' Assembly is?". They found a significant proportion of people had no idea that the Citizens' Assembly even existed. The publicity issue becomes incredibly important.

  Q179  Chairman: Does this not come back to the Earl of Onslow's original point about the nature of representative democracy? I suspect that, if you did opinion polling after people had voted in a General Election and asked them in detail about each party's political programme, they may know one or two headlines but the chances of knowing the full picture would be absolutely zero.

  Professor Smith: This was a referendum on one thing. The recommendation had been put forward by a citizens' assembly, so you would have thought that that would be a case when people would know.

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