14 February 2008
Lincoln's Inn, London
Justice Minister Michael Wills gave a speech on the constitutional renewal programme at the Leslie Scarman Lecture on 13 February 2008. This year's lecture was delivered by Professor Aharon Barak, the former President of the Supreme Court of Israel.
Minister of State Michael Wills MP:
Thank you. It was a privilege to be in the audience this evening to hear Professor Barak's lecture. For most of us, most of the time, we are not confronted with the stark choices in the difficult and often raw circumstances that he described.
But the challenges are still there for us. And that is why I found his lecture so illuminating. This current generation of terrorism is creating difficult decisions for us about how best to balance liberty, the founding value of this country, with security, the first duty of any government to its people. Shortly, Parliament will begin another fraught discussion about the extension of pre-charge detention.
And behind the headline issues, behind all the complex and difficult decisions about how to strike the balance between liberty and security lies a profound and perennial and far-reaching question about where power should be located in our society and how it should be distributed.
The importance of human rights legislation is located precisely in its entrenchment of protections for the powerless individual against a mighty state, claiming privilege on behalf of the collective.
The bitter and bloody experiences of the twentieth century have taught us the inescapable importance of countering the inevitable tendency of power to accumulate around the already powerful.
Democracy and the rule of law protect the individual, each and every one of us, against the abuse of power by the powerful.
But, as Professor Barak reminded us, we must never take this protection for granted. How best we secure it is a defining challenge of our times.
Because the biological disposition of the powerful to aggrandise power to themselves does not manifest itself only in authoritarian or majoritarian states. The challenge is present also in the emergence of great global corporations. And it's present, as it always has been, in the sclerotic insensitivity of the tin-eared bureaucrat, both in the private and the public realm. And as Hamlet told us 400 years ago, it's there in the proud man's contumely and the law's delay and in the insolence of office.
Deposits of power in vested interests clog the arteries of healthy societies. In healthy societies, power is diffused and flows freely.
That belief drives the constitutional reform programme that the Prime Minister launched in the Governance of Britain Green Paper in July last year. It aims to set up mechanisms to help dissolve concentrations of power and redistribute it. Because a robust democracy depends on power being diffused. Between Parliament and government and devolved administrations and local authorities and the courts. Power needs to be plural.
This is a particularly important task in a political era where long-term incumbency is becoming the norm for governments - the Conservatives were in power for 18 years and then my party has already been in power for 11 years. With such long incumbencies, power can come to settle too comfortably in the state - and even more importantly people begin to believe that it is doing so.
There are three main strands in this programme which builds on the constitutional changes this government has delivered since 1997 - the Human Rights Act, freedom of information, and radical devolution of powers away from Westminster to Scotland, Wales and Northern Ireland and London.
The Constitutional Renewal Bill will surrender or limit a wide range of powers currently exercised by the executive, transferring them to Parliament. Changes to the executive's power to deploy British armed forces in armed conflict, to the way treaties are ratified, to powers of appointment, and significant changes to the way the office of the Attorney General operates will all be included in the White Paper which will be published shortly before consideration in an extensive process of pre-legislative scrutiny.
The second strand of work is the British Bill of Rights and Duties. When Jack Straw took the Human Rights Bill through Parliament he said it would be a floor and not a ceiling and we now intend to move to the next stage in articulating the balance between rights to which we are all entitled and obligations we owe to each other.
We'll publish our view on the way forward soon. And we'll do so conscious of Philip Alston's view that Bills of Rights are 'a combination of law, symbolism and aspiration'. We'll explore the case for economic, social and cultural rights and so-called third generation rights but in ways that won't put the judiciary in the uncomfortable position of having to make decisions about the allocation of scarce public resources, decisions which are more properly left, in our view, to elected politicians.
Because I am always asked questions about this, I should like to make it clear that this Bill will not represent any resiling from the Human Rights Act. We're proud of that legislation and we believe it's worked well. But times have changed and constitutional arrangements evolve and we believe it's now time to build on that Act's achievements, but without in any way undermining our fundamental commitment to human rights, to which everyone is entitled by virtue of their humanity.
The final strand of the programme is the formulation of a British Statement of Values. Our national identity matters. Most advanced democracies have developed ways to express formally their view of who they are as a nation. This country has throughout much of its history vigorously discussed what it meant to be British. It was only in the years after the Second World War that we went through a period of introspection, lacking in self-confidence when such discussions were often regarded with embarrassment. We are now far more successful and self-confident as a country and the government believes the time is right to find a way to express who we believe ourselves to be in a way that is inclusive and commands broad support.
If we don't do this, others will. National identity matters to people. If there in't a national process to discuss it, in ways that are inclusive of everyone on these islands, then there is a risk that this territory will be colonised by sectarian and sometimes even poisonous views.
For us, here the process of discussion and deliberation is as important as the outcome. That's why we are doing this through an innovative constitutional process. Shortly, we will start a series of discussions up and down the country, accompanied by print material and online forums, on what it means to be British, what's best about it, what best expresses what's best about it. This will all be fed into a citizens summit - a representative sample of perhaps 500 people, selected randomly, for example, from the electoral register, but filtered, in much the same ways as opinion polls filter their samples, to ensure it is demographically representative. And informed by these consultations and by presentations directly to them, they will deliberate - and we hope decide - on four main questions: should there be such a statement of values, if so what it should be, how it should be expressed and finally what it should be used for.
Their decision will then go to Parliament for a final decision.
This novel process forms part of the way in which we are seeking to augment and enhance our system of representative democracy. Because the demands on our democracy are evolving. In the twentieth century model of representative democracy, people exercised power mainly at elections, they trusted elected representatives to govern on their behalf between elections, politicians were generally accepted as one of the main sources of power and authority and most people believed this system enfranchised them and gave them effective government.
Now people are becoming not so much mistrustful of this model but disengaged from it: many wish to exercise power between elections as well as at them; politicians are not generally accepted as the sole source of power and authority; people are no longer as confident the system enfranchises them as it once did and this disengagement is found across society but it's most pronounced among the young and the poor.
There are complex and long-term causes for this: the decline of deference and hierarchy, the fragmentation of communities which, among other things, is destroying the social base for political parties, better educated and autonomous empowered individuals who expect the same control over politics that they exercise in other areas of their lives.
But while politicians need to respond to these changes, the solution is not to replace representative democracy. For this government, representative democracy - and therefore Parliament - must remain at the heart of the governance of this country. It's the best way we have yet found to deliver fair and effective government. It allows for the fairest distribution of power among all citizens and provides for the fair treatment of minorities. It gives government the ability to tackle complex issues continually as they arise and it does give space for effective deliberation for government to refine and improve policy - so decisions aren't taken in haste and repented at leisure.
I'm not saying it always works in practice like this but it often does, more often than is sometimes recognised - and it certainly has a better chance of doing so than any other form of government that anyone has come up with.
Now this may seem so obvious as to be hardly worth stating. But I believe that profound change makes it important to state it - and keep stating it. Extraordinary new internet technologies are transforming the relationship between politicians and voters.
Here's an illustration of the sort of issue which may soon confront MPs. Broadband is rapidly becoming a commodity. It's estimated that two-thirds of households will have a broadband connection by the end of next year. For those households, it'll be very easy and very cheap to communicate with their MPs. No more buying stamps and going out into a cold winter evening to post a card or a letter. Just a click or two. The electronic plebiscite is just a click or two away.
Imagine a billionaire decides he wants Parliament to make a significant policy change and launches a campaign to get that change - even though there may be a settled consensus among MPs against such change. I'm sure you can all think of examples of such policies. Nationwide advertising is launched and mass emailing, not for counterfeit Viagra or penny shares but for the policy change. And millions can see that all that is required from them is their name and a postcode and a click. And every MP in a marginal seat could be deluged with thousands of emails. Not necessarily a bad thing but certainly a change. And a challenge. Especially if, as is perfectly possible, they are deluged with thousands of emails, repeatedly, month after month.
How robustly would MPs in marginal seats, in such circumstances, follow Edmund Burke's famous injunction that a Member of Parliament ought not to sacrifice to his or her electorate their 'unbiassed opinion ... mature judgement ... enlightened conscience' and that he or she owes them 'not industry only, but judgment'?
However we respond to such challenges - and these are complex issues that will repay further detailed and considered debate - we need to be very careful about embarking on a slippery slope towards plebiscitary democracy. That is not the way to build trust in our democracy. The troubled twentieth century taught us the dangers of plebiscitary democracy and reminds us today of the virtues of representative democracy.
In these circumstances of the changing societal base for our democracy and the advent of new technologies which, indeed can be a benign force enhancing democracy, this government is convinced that we need to work more vigorously to re-engage citizens in the representative democracy we all share - and from which we all benefit.
Hence the surrendering or limiting of the power of the executive, the development of new mechanisms to make policy development a collaborative venture between government and citizens, instead of a top-down exercise which can only be accepted or rejected at elections with no in-between options, and giving citizens greater opportunity directly to monitor and scrutinise the delivery of policy.
We believe all this, the Constitutional Renewal Bill, the Bill of Rights and Duties and the British statement of values represents an exciting and important agenda and we look forward to taking it forward with all of you in the months ahead.