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Promoting Participation:
Law or Politics?
Edited by
Professor N Douglas Lewis, FRSA
Director of the Centre for Socio-Legal Studies
Faculty of Law, University of Sheffield
Professor David Campbell, BSc (Econ), LLM, PhD, FCI (Arb)
Cardiff Law School
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Lewis, N Douglas
1999
PREFACE
Over almost 40 years of distinguished scholarship, Douglas Lewis has argued
for constitutional reform which would facilitate British citizens effective
participation in the making of the decisions that set the basic pattern of their
collective life. That what now passes for the British constitution signally fails
to do this is a position which he has done much to publicise through the most
authoritative contributions to public laws account of the British polity. He has
argued that this failure of the British constitution is unacceptable at a
compelling level of philosophic sophistication by applying transcendental
moral philosophy derived from Gewirth to the central concepts of public law,
such as citizenship, democracy, and rights.
That the very strength of Lewis arguments (and other arguments to
similar effect) meant that they were very far from the practices and policies of
the moribund succession of British governments between 1987 and 1997 was a
paradox which tells one much about those governments. The election of the
New Labour Government committed to, and actually beginning to
implement, radical constitutional reform is a strong endorsement of the
position which Lewis has set out. One aspect of Lewis work almost a
hallmark of anything of real interest in contemporary legal scholarship has
been its insistence on going beyond the boundaries of the black letter
approach to public law. He has revised the methods of public law scholarship
in the light of awareness of contributions from other disciplines, such as
administrative studies, political science and social policy, not to mention
philosophy. Following the publication of Choice and the Legal Order: Rising
Above Politics, Lewis conceived of a conference on The Constitutional
Implications of Participation to explore the issues which pursuit of greater
participation raises for public law and other disciplines. This conference was
held at the University of Sheffield in September 1997. Four days of intensive
discussion yielded papers of such a quality that the decision was taken to
publish those papers as this book.
The major work of organisation of the conference was carried out by Ms
Di Longley of the Faculty of Law, University of Sheffield. The following
colleagues were good enough to chair the various sessions of the conference:
Professor Philip Jones, Faculty of Law, University of Sheffield; Professor Mike
Purdue, Department of Law, City University; Ms Lorna Woods, Faculty of
Law, University of Sheffield; Professor Gary Edles, American University,
Washington DC, USA; Professor John Birds, Faculty of Law, University of
Sheffield; Professor Alan Walker, Department of Sociological Studies,
University of Sheffield; Professor Keith Ewing, Faculty of Law, Kings College
London; and Professor Cosmo Graham, Law School, University of Leicester.
The conference received the financial support of Cavendish Publishing,
the Faculty of Law, University of Sheffield; and the School of Financial Studies
and Law, Sheffield Hallam University. David Campbells work on the
Conference and on this book was supported by ESRC grant R000236416.
Promoting Participation
Douglas Lewis and I are grateful to the contributors to this book, Ms
Longley, the chairs of conference sessions, the other participants at the
conference, the financial supporters of the conference, the ESRC and
Cavendish Publishing for their contributions to the publication of this book.
David Campbell
East Morton, West Yorkshire
April 1999
vi
CONTRIBUTORS
Patrick Birkinshaw has been Director of the Institute of European Public Law
at Hull University since 1992 and has been a Professor in the Law School at
that university since 1990. He is the author of many books and articles
including Grievances, Remedies and the State (2nd edn, 1995); Freedom of
Information: The Law, the Practice and the Ideal (2nd edn, 1996); and Government
and Information: The Law Relating to Access, Disclosure and Regulation (2nd edn,
2001). He became Director of the Law School at Hull University in the
summer of 1997.
David Campbell is Professor of Law in the Cardiff Law School. His research
interests are in the law and economics of commercial transactions, the law and
economics of corporate governance and in philosophical and social scientific
approaches to law. His most recent publications include articles on the
methodology of law and economics and applications of that methodology to
the law of contract and to company law.
Nicholas Deakin is currently Visiting Professor at the Local Government
Centre, Warwick Business School and at the LSE. Before that, he taught social
policy for 20 years at Birmingham University. His most recent project has
been A study on the Treasury and social policy unit as part of the ESRCs
Whitehall programme. In 199596, he was chair of the Independent
Commission on the Future of the Voluntary Sector in England.
Kevin Dowd is Professor of Economics at the University of Sheffield. His main
research interests are in financial regulation, risk management and political
economy. Much of this work was summarised in his book Competition and
Finance: A New Interpretation of Financial and Monetary Economics (1996), which
attempted to provide a restatement of the case for financial laissez-faire and the
abolition of central banking.
Kevin Featherstone is Professor of European Politics and Jean Monnet
Professor of European Integration Studies at the University of Bradford. He
has published widely in European Union politics and on politics in modern
Greece. His most recent book is The Road to Maastricht: Negotiating Economic
and Monetary Union (1999).
Lucy Gaster is Senior Lecturer at the Institute of Local Government Studies,
University of Birmingham. She has been involved in public participation for
20 years, as a community activist and service user, and more recently as a
local government officer and then as an academic. Her main interests are
around the relationship of government and people at the local and
vii
Promoting Participation
neighbourhood level, looking in particular at service quality, local democracy,
decentralisation and holistic working. She is the author of Quality in Public
Services: Managers Choices (1995).
Geraint Howells is Reader in Law at the Institute for Commercial Law
Studies, Sheffield University. He has written widely on consumer law issues
(his books include Comparative Product Liability (1991); Consumer Product Safety
(1998); Consumer Protection Law (1995); and EC Consumer Law (1997)) and is
editor of the Consumer Law Journal.
Barry Knight is Secretary to the Foundation for Civil Society. He is a social
scientist who has previously worked at the Home Office and Cambridge
University. He is at present conducting research on international aspects of
civil society.
N Douglas Lewis (formerly writing as Norman) is Professor of Public Law
and Director of the Centre for Socio-Legal Studies at the University of
Sheffield. He has written widely in the field of public law and administration.
His current research concentrates on law and governance and social and
economic rights.
JE Parkinson is a Professor of Law at the University of Bristol and an
Honorary Research Fellow of the Political Economy Research Centre at the
University of Sheffield. His main publications are in company law and
corporate theory and include Corporate Power and Responsibility: Issues in the
Theory of Company Law (1993).
Tony Prosser is John Millar Professor of Law at the University of Glasgow. He
has written extensively about utility regulation, most recently in Law and the
Regulators (1997). He has also undertaken work on media regulation and has
published Regulating the Changing Media: A Comparative Study (1998).
Tony Rees is Senior Lecturer in Social Policy at the University of
Southampton. He is the author of the fifth edition of TH Marshalls Social
Policy (1985) and was co-editor of Citizenship Today (1996). He has also
published several recent articles on citizenship and voluntarism. He is a
viii
Contributors
member of the Council of National Association of Citizens Advice Bureaux
(NACAB).
Mary Seneviratne is Professor of Law in the Centre for Legal Research,
Nottingham Law School. Her subject areas are administrative law and
criminal law. Her research interests include civil justice, ombudsmen,
alternative dispute resolution mechanisms and the regulation of the legal
profession. She is the author of Ombudsmen in the Public Sector (1994), and her
new book The Legal Profession: Regulation and the Consumer is to be published
later this year. She qualified as a solicitor in 1977, and has worked in local
government.
Perri 6 is a Senior Research Fellow in the Department of Government at the
University of Strathclyde; Senior Research Fellow (and formerly Director of
Policy and Research) at the independent, cross-party think-tank, Demos; and a
Visiting Research Fellow in the Centre for Environmental Strategy at the
University of Surrey. He is the author, co-author or editor of over 20 books,
including On the Right Lines (1998); The Future of Privacy (1998); Holistic
Government (1997); Escaping Poverty (1997); The Contract Culture in Public
Services (1997); and Liberty, Charity and Politics (1995). He is currently working
on major studies on integration and holistic working in government, on the
politics of moral character, and on the nature of the radical centre.
John Wadham is a solicitor and the Director of Liberty (the National Council
for Civil Liberties). He has acted for large numbers of applicants in cases
before the European Commission and the Court of Human Rights. He is the
editor of Your Rights: The Liberty Guide; the civil rights section of the Penguin
Guide to the Law; the case law reports for the European Human Rights Review;
and is the author of Blackstones Guide to the Human Rights Act 1998. He has
also contributed to many other publications and written many articles on
human rights and civil liberties. He is a member of the Governments Human
Rights Act Task Force. He also appears as a spokesperson on human rights
issues in the media and is a regular speaker at conferences and on training
courses.
Ian Ward is Professor of Law at the University of Newcastle upon Tyne. His
research interests are concentrated in the related areas of public law, European
law and legal theory. He is the author of A Critical Introduction to European Law
ix
Promoting Participation
(1996) and The Margins of European Law (1996). He is currently completing a
book on the history of English constitutional thought from the 16th to 19th
centuries.
Stuart Weir is Director of the Democratic Audit and a joint author of The Three
Pillars of Liberty (1996) and Political Power and Democratic Control in Britain
(1998), its two benchmark reports on political freedom and democracy in the
UK, as well as being author of its research reports on elections, quangos and
task forces. He is a Senior Research fellow at the Human Rights Centre,
University of Essex, and Associate Consultant to the British Council. His
contribution, however, draws also on community activities in Hackney and
his period as a councillor there.
CONTENTS
Preface
Contributors
Table of Cases
Table of Legislation
v
vii
xv
xix
N Douglas Lewis
31
Kevin Dowd
45
David Campbell
75
Perri 6
101
Stuart Weir
113
Lucy Gaster
xi
Promoting Participation
8 CITIZENSHIP, PARTICIPATION AND LEGITIMACY IN THE
EUROPEAN UNION
157
Kevin Featherstone
9 COMMUNITY POLITICS
175
Barry Knight
183
Nicholas Deakin
193
Tony Rees
213
N Douglas Lewis
229
Patrick Birkinshaw
251
John Wadham
xii
267
Contents
16 CONSUMERS AND PARTICIPATION
291
Geraint Howells
319
JE Parkinson
349
Tony Prosser
Bibliography
363
Index
405
xiii
TABLE OF CASES
Abdi v Secretary of State for the Home Department
[1996] 1 All ER 641 (HL) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .247
Attorney General v Blake [1998] 1 All ER 833 (CA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .232
Breckland Group Holdings Ltd v London
and Suffolk Properties [1989] BCLC 100 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .322
Brind v Secretary of State for the Home Department
[1991] 1 All ER 720 (HL) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .242
Bromley Borough Council v Greater London Council
[1983] 1 AC 768 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .219
Bushell v Secretary of State [1980] 2 All ER 608 (HL) . . . . . . . . . . . . . . . . . . . . . . . . . . .248
Case C-382-3/92 [1994] ECR I-2435 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .155
Chalal v United Kingdom (1997) 23 EHRR 413 . . . . . . . . . . . . . . . . . . . . . . . . . . . .240, 252
Council of Civil Service Union
v Minister for the Civil Service [1984] 3 All ER 935 (HL) . . . . . . . . . . . . . . . . . . . . . .230
Daar v Yellow Cab Co [1967] 433 P 2d 732 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .305
Davies v Eli Lilley and Co [1987] 1 WLR 1136 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .303
Grogan [1991] ECR I-4685 (CJEC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .240
Hamble v MAFF [1995] 2 All ER 714 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .242
Horrocks v Ford Motor Company
(1990) The Times, 15 February . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .303
Hsu v Commissioner of Police for the Metropolis
[1997] All ER 762 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 263
Johnstone v Chief Constable of the RUC [1986] 3 All ER 135
(CJEC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .240
Kremzow v Republik Osterreich (1997) The Times, 11 August . . . . . . . . . . . . . . . . . . .240
M v Home Office [1993] 3 All ER 537 (HL) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .230
McCann v UK (1995) The Times, 9 October . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .240
Marbury v Madison (1803) 1 Cranch 103 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .231
Netherlands v EU Council [1996] ECR I-2169 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .241
xv
Promoting Participation
Pepper v Hart [1993] 1 All ER 42 (HL) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .249
R v Cambridgeshire Health Authority ex parte B
[1955] 2 All ER 129 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .225
R v Cambridgeshire Health Authority ex parte B
[1995] 1 WLR 898 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .282
R v Chief Constable of Sussex ex parte International
Traders Ferry Ltd [1997] 2 All ER 65 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .282
R v Commissioner for Local Administration
ex parte Croydon LBC [1989] 1 All ER 1033 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .244
R v HM Inspectorate on Pollution
ex parte Greenpeace (No 2) [1994] 4 All ER 329 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .261
R v Independent Television Commission
ex parte TSW Broadcasting Ltd [1996] EMLR 291 . . . . . . . . . . . . . . . . . . . . . . . . . . . .360
R v Independent Television Commission
ex parte Virgin Television Ltd [1996] EMLR 318 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .360
R v IRC ex parte Unilever [1996] COD 421 (CA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .242
R v Legal Aid Board ex parte Donn and Co
[1996] 3 All ER 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .245
R v Parliamentary Commissioner for Administration
ex parte Balchin (1996) unreported, 25 October . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .244
R v Parliamentary Commissioner for Standards
ex parte Fayed [1988] 1 All ER 93 (CA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .230
R v Secretary of State for Employment
ex parte Equal Opportunities Commission [1994] 2 WLR 409 . . . . . . . . . . . . . . . . . .261
R v Secretary of State for the Environment
ex parte OKeefe (1997), The Times, 5 August . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .248
R v Secretary of State for Foreign Affairs ex parte WDM Ltd
[1995] 1 All ER 611 (CA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .248
R v Secretary of State for Foreign and Commonweath Affairs
ex parte World Development Movement [1995] 1 WLR 386 . . . . . . . . . . . . . . . . . . .261
R v Secretary of State for the Home Department
ex parte Fayed [1997] 1 All ER 228 (CA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .248
R v Secretary of State for the Home Department
ex parte Fire Brigades Union [1995] 2 All ER 244 (HL) . . . . . . . . . . . . . . . . . . . . . . . .230
R v Secretary of State for the Home Department
ex parte Hargreaves [1997] 1 All ER 379 (CA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .242
R v Secretary of State for the Home Department
ex parte Pierson [1977] 3 All ER 577, HL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .231
R v Secretary of State for the Home Department
ex parte Simms [1998] 2 All ER 491 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .247
xvi
Table of Cases
R v Secretary of State for the Home Department
ex parte Thompson [1997] 1 All ER 327 (CA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .248
R v Secretary of State for the Home Department
ex parte USTII [1992] 1 All ER 212 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .248
R v Secretary of State for the Home Department
ex parte Venables [1997] 3 All ER 97 (HL) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .231, 248
R v Secretary of State for the Home Department
ex parte WDM Ltd [1995] 1 All ER 611 (CA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .245
R v Secretary of State for Social Services ex parte CPAG
[1990] 2 QB 540 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .261
R v Secretary of State for Transport ex parte Factorame
[1991] AC 603 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .214
R v Secretary of State for Transport ex parte Richmond LBC
[1996] 4 All ER 903 (CA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 248
R v Secretary of State for Wales ex parte Emery
[1996] 4 All ER 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .248
Saunders v UK (1997) 23 EHRR 313 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .242
Simmonds v Heffer [1983] BCLC 298 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .347
Stanley Johnson, (1997) unreported, 24 October . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .263
Stovin v Wise (Norfolk County Council: third party)
[1996] 3 WLR 388 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .284
Sunday Times v UK (1979) 2 EHRR 245 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .240
Svenska Journalist Forbundet v EU Council
[1998] All ER (EC) 620 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .240
Thompson v Commissioner of Police for the Metropolis
[1997] 2 All ER 762 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .263
Van Gend en Loos [1963] ECR 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .240
West Mercia Safetywear Ltd v Dodd [1988] BCLC 250, 322
Wheeler v Leicester City Council [1985] AC 1054 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .219
xvii
TABLE OF LEGISLATION
Amsterdam Treaty
Control of Misleading
Advertisements Regulations 1988,
SI 1988/915 . . . . . . . . . . . . . . . . . . . . . . . . . 312
Bill of Rights
(United Kingdom) . . . . . . . . . . . . . . . 222, 223,
Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253
154, 160
119, 235,
Art 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 256
244, 277
Art 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 254
Art 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 263
Art 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253
Art 34 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 260
Art 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 252
Art 41 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 262
Protocol 7 . . . . . . . . . . . . . . . . . . . . . . . 252, 264
Companies (Tables A to F)
Regulations 1985
Art 78 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 322
Protocol 11 . . . . . . . . . . . . . . . . . . . . . . . . . . 262
ss 1114 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 351
Pt II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 291
European Communities
Act 1972 . . . . . . . . . . . . . . . . . . . . . . . . 256, 292
Pt III . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 291
European Communities
Act 1973
s 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 233
s 20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 313
s 25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 313
xix
Promoting Participation
European Community
Maastricht Treaty
Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154
Multilateral Agreement
on Investment (MAI) . . . . . . . . . . . . . . . . . . . 7
Art 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154
See, also, Treaties, European Union 1992
Paris Treaty
Fair Trading Act 1973 . . . . . . . . . . . . . . . . . . 291
s 124(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 314
ss 2327 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 351
Principle 10 . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Rome Treaty
See Treaties: Rome 1957Rules of the Supreme
Court
Ord 15, r 12 . . . . . . . . . . . . . . . . . . . . . . . . . . 302
Ord 53 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 259
Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 242
Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 242
s 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 259
s 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 258
s 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 258
s 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 264
Art 30 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151
Art 118B . . . . . . . . . . . . . . . . . . . . . . . . 153, 154
Industrial Democracy
White Paper 1978 . . . . . . . . . . . . . . . . . . . . 153
International Convention
on Economic, Social
and Cultural Rights . . . . . . . . . . . . . . 213, 284
xx
Table of Legislation
Title VI . . . . . . . . . . . . . . . . . . . . . . . . . 160, 169
Transfer of Undertakings
Directive 77/187 . . . . . . . . . . . . . . . . . . . . . 156
Treaties:
154, 161,
168, 170, 238
Universal Declaration
of Human Rights 1948 . . . . . . . . . . . 268, 276,
279, 284
Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150
Art 3B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142
ss 3235 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 355
Art A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142
156, 332
xxi
CHAPTER 1
N Douglas Lewis
Although it can vary in its specific forms, the whole general social and
economic system of the maintenance of law and order, education and the
production of goods and services is so virtually inescapable if the needs of
human agency are to be fulfilled that participation in it, or its results, is also
rationally inescapable.1
INTRODUCTION
I want to make out the case for participation by citizens in a wide range of
fundamental political, social and economic affairs; to argue that that case is
embedded in the notion of citizenship (as an aspect of treating all human
beings as being of the same intrinsic worth); and that, correspondingly,
acceptance of this case should be reflected in the constitution itself. If the case
is made out, then the constitutional implications are wide-ranging and present
a challenge to almost every aspect of legal scholarship.
The force of this argument is, perhaps, reflected in the contemporary
political infatuation with choice. In the recent past, choice has been
associated with the political right, but at a deeper level it is about according
respect to each human being on account of their status as such. It will be
argued that a government committed to choice would produce extensive,
pluralistic institutions which encourage rational discourse rather than assume
that a dominant executive knows best.2 That a strong and diverse civil society
is necessary for both national stability and social cohesion follows from this
thinking.3 In fact, choice and participation as linked aspects of human agency
are also intimately related to autonomy (which, as I shall claim, has important
implications for social and economic rights) and, of course, to an equality
which is not limited to sex, religion or nationality.4 This philosophic argument
will not be developed here, but is best explored by Alan Gewirth in his
1
2
3
4
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various writings on categorical moral philosophy, not least in the book from
which the introductory quotation is taken.
Before developing the general theme, a word needs to be said about the
centralised British State which is, in too many respects, the enemy of genuine
political participation. The erosion of the powers of local government in the
relatively recent past is well documented and is, hopefully, about to be
reversed, so that a genuine commitment to subsidiarity in the best sense may
be about to be made. We shall see. There are, however, dimensions of political
participation, other than its strengthening of territorial politics, which merit
some consideration, although the recent Labour Governments acceptance of
the Council of Europes charter of local self-government is to be welcomed.
The Charter includes a declaration that local authorities should manage a
substantial share of public affairs and have adequate financial resources of
their own. It is also worth noting that the Council of Europe has endorsed
directives which encourage the establishment of voluntary associations. It will
be interesting to see what linkages emerge between greater autonomy for local
government and encouragement for intermediary bodies representing a wide
range of citizen interests. This aside, there are other aspects to citizen
participation which could be pursued.
Over the past 20 to 30 years, attempts have been made to increase central
governments control over capital expenditure at local level, not least through
the discretionary allocation of funds via the Single Regeneration Budget and
the diversion of funds to quangos such as the Housing Corporation. However,
research indicates that resources tend to be spent on schemes with a low local
priority simply because money was available for them. Councils have been
forced to take a segmented rather than a comprehensive view of capital
expenditures. Constitutional regulation has, in my view, an important and
innovative part to play in encouraging genuine local partnerships between
government, voluntary organisations, the private sector and an active
citizenry. A number of models which might be encouraged come to mind.
In recent years, we seem to have been presented with a choice between
untrammelled market forces and inefficient or unresponsive public services.
Yet there are experimental forms of partnership which seem genuinely
capable of combining private sector efficiency with public service
responsibility. Profit sharing, the community use of premises off peak, and
local governments holding of golden shares to ensure the democratic
accountability of certain organisations are examples which come to mind.6
The Citizens Charter is capable of being reformed to offer a more genuine
form of participation to service users. Note the attitude of the Labour Party
when in opposition:
5
6
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Under Labour, the design and delivery of public services will be far more user
focused. Here the Citizens Charter has a contribution to make. Labour will
remodel the Charter to have far more user involvement. Users will be
consulted in the design of targets. Feedback from users will assist in
continuous improvement in quality and delivery. Complaints procedures will
be used as a spur to continuous improvement.7
At the time of writing, the now Chancellor of the Duchy of Lancaster seems
determined to deliver on these promises. In any event, involvement of citizens
in the socio-political project clearly is capable of being much more widely
developed than traditionally is assumed. Such development does not detract
in any way from the legitimacy of genuine markets.
Derek Foster, Shadow Chancellor of the Duchy of Lancaster, speech at the IPMS
Conference.
The author has developed these arguments in several other works, nb, Choice and the
Legal Order.
4
Rousseau graphically made a similar point when saying that no citizen shall
ever be wealthy enough to buy another, and none poor enough to be forced to
sell himself.12 The reality is that each phase of industrial development has
involved a modification or restriction of market relations. Although none of
9
For a highly persuasive account of the strengths and failures of traditional markets, see
Stiglitz, Whither Socialism?.
10 But see, eg, Olson, Big bills left on the sidewalk: why some nations are rich and others
poor.
11 Gewirth, The Community of Rights, pp 138, 141.
12 Rousseau, The Social Contract, p 50.
5
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this has been root and branch, there is an implicit acceptance that, just as it is
unacceptable to allow political choice to remain in the hands of a few, so
production and investment decisions need to bow to the same logic. This
being the case, the legal order can scarcely remain indifferent to control of the
large corporation.
What I have called private fiefdoms were labelled by James Madison in
Federalist13 as factions, the special interests of which the Republic had to
curb. The Republics goal was to create a system that would emphasise
deliberation rather than allowing the passion or power of a particular cause
to take hold. In like vein, Cole remarked that vast inequalities of wealth and
status, resulting in unacceptable inequalities of education, power and control
of the environment: are necessarily fatal to any real democracy, whether in
politics or any other sphere.14 The Romans had an expression for it: what
affects all should be approved by all.15
Things can be done about these inequalities by the legal order. The
potential, as well as the present limitations, can be seen in the judgment of a
French court which in the Spring of 1997 ordered Renault to consult its
European works council before making any further move to close down its
Vilvoorde car plant in Brussels. Under the present legal regime, that court
could not, of course, challenge the closure itself. Participative experiments
have been conducted closer to home. Last year, for example, the Training and
Enterprise Councils (TECs) recommended the creation of local economic
partnerships between the private and public sectors. The TECs spoke of a
shared vision of local authorities, trades unions and the voluntary sector
informing efforts to promote not just competitive businesses but a
competitive society one which achieves a dynamic equilibrium between
wealth creation and social cohesion.16
At both the theoretical and empirical levels, there is a considerable amount
of information to be mined and best practice to be absorbed. However, there is
clearly a link between participation in the working of such structures and the
familiar literature on discourse and ideal speech. Furthermore, there is
increasing evidence that, even in the global marketplace, the factions or
fiefdoms might need the nation state (and, therefore, the rest of us) as much as
the other way around. Will Hutton, for example, has said:
New technologies, markets and companies are constantly throwing up new
challenges: even the mighty IBM lost its dominant position within a decade
and the same forces may now be at work on McDonalds. In this climate, even
13
14
15
16
the biggest multinational needs allies and partners. Among the most reliable is
the Nation State.17
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reform are in the air,20 and are examined in Tony Prossers contribution to this
book.
CLUSTERS OF EXPECTATIONS
Participation has been chosen as the guiding theme of this book because of its
historic political associations which are resonant with sentiments about
citizenship. However, on closer examination, participation is something of an
umbrella concept, and embraces a number of other cherished values. These
constituent values are clearly distinguished by Perri 6 in his analysis of the
cultural prerequisites of increased participation in Chapter 4. I will here focus
on natural justice and equality, both of which values have long pedigrees.
Natural justice was originally limited to the courtroom, and originally to lifechallenging situations, but it has come to represent the right to be heard and
to present an individual case in a wide range of administrative and political,
as well as judicial, situations. Because of its close identification with the
judicial arena, judicial review has not normally been expanded to bear upon
private power structures, even though in the shape of the right to be
consulted it has periodically conferred rights of a participative sort in a
range of political and administrative settings. The doctrine of fairness
occasionally has been expanded into a weak doctrine of participation. All of
this raises the question of the optimal role of the judiciary, not least in the
context of rule making procedures. This issue is taken up by Patrick
Birkinshaw in the context of the separation of powers in Chapter 13 of this
book, and I turn to it in Chapter 12.
The issue of participation has been raised in relation to consumer
representation. It has been proposed that when decisions which concern them
are about to be made, consumers should be consulted and allowed to express
their views, in particular through consumer organisations.21 These proposals
are all reviewed in this book by Geraint Howells. A more pointed example of
consumer representation, albeit at second hand, can be seen in recent
proposals for a food hygiene monitoring service which enables consumers to
make their own choices and their own decisions. It also appears, at first blush,
that the new Blair Governments approach to competition policy is more
consumer minded than that of its predecessors. In this respect, the focus of the
new Competition Bill on regulatory issues seems to indicate an acceptance of
20 See the authors evidence to the House of Commons Public Service Select Committee,
published as The Citizens Charter, 3rd Report, Vol 11, Minutes of Evidence, Session
199697, HC7811, pp 5560 and the literature cited therein.
21 Geddes, Protection of Individual Rights under EC Law, p 7.
8
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government and the voluntary third force or third sector, and that a
Parliamentary Select Committee be established to monitor all aspects of the
relationship between government and the voluntary sector and the general
impact of government policy on voluntary organisations. The Commission
also recognised that fostering participation through accountability and user
involvement are crucial. In particular, it said that voluntary organisations
should identify all their key stakeholders and the way in which they are
accountable to and communicate with those stakeholders. The Commission
also suggested that funders should move towards the involvement of users
not only in the delivery of services, but also in their planning.
So vital is the third sector that the British government is currently
supporting projects investigating how to develop a new, independent,
voluntary sector in the former Iron Curtain countries. This sector is seen both
as a countervailing force to the power of the centralised State and a means of
establishing a free civil society,30 and the Commissions call for a code of
conduct governing the third sectors relationship with the State is meant to
ensure that that sector does not become a kind of bendy toy for government
to play with. Voluntary action can marshal crucial social capital for the
development of resources that are intangible but fundamental to the future of
civil society. When addressing all these issues, the Commission has also
pointed up certain problems and dilemmas facing the third sector31 which
ought to be of considerable interest to public lawyers, although, with
honourable exceptions, those lawyers have paid little attention to that sector
in the past.
It is clear that new organisational and, not least, legal forms of
participative relationships are possible and desirable if the talents of broad
swathes of the population are to be harnessed. For example, in mid-1997, the
UKs first private regeneration fund was launched with the intention of fund
raising for small businesses and social organisations such as housing
associations. Clearly, bodies which aim to invest in the social fabric and
economy to help liberate expectations do not have to be confined to the
private sector. Local employment pacts involving joint action by private
companies and the voluntary sector have been called for by the EUs Social
Affairs Commissioner. As I have argued elsewhere:
There has been a resurgence of original thinking about community forms of
emancipation in recent times with which many will be familiar. For present
purposes, the details matter less than the principle. This is where traditional
concepts of subsidiarity meet community. A more autonomous local
government would have both the resources and the obligation to engage in
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39 Lewis, Choice and the Legal Order: Rising Above Politics, pp 13536.
40 Bynoe, Rights to Fair Treatment: A Practical Study to Develop New Rights for People Seeking
Health or Social Care.
16
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private fiefdoms which have little pretension to anything other than profit
maximisation. To quote Cole for the last time:
... such democracy as is recognised is conceived in a narrowly political sense,
as applying to a quite peculiar sphere known as politics, and not in a broader
and more comprehensive sense, as applying to all the acts which men do in
association or conjunction ... They [democrats] ignore the fact that vast
inequalities of wealth and status ... are necessarily fatal to any real democracy,
whether in politics or in any other sphere.44
Quite aside from the force of this argument in itself, it needs to be observed
that socio-industrial organisations are often State-dependent, workerdependent and, indeed, dependent on a raft of institutions of civil society to
which they often pay scant democratic respect, pleading instead the
legitimacy of the market. Hence, the resurgence of the stakeholder concept.
For example, it is widely accepted that governments increasingly provide
public goods, such as education and training, in which industry is often too
short-sighted to invest. Not only are such goods increasingly important in the
new technological revolution, but an insight into our proper priorities is
afforded when skills and education are often described as human capital, for
this makes it clear that it is human needs which must be respected, rather than
man-made institutions which are the product of history and accident as well
as of genuine desiderata.45
It is also by no means clear that the imperatives of private fiefdoms
coincide with those of the governments which host their activities. For
instance, investment is often thought by politicians to be inadequate given the
longer term needs of national economies. To take one instance, the ratio of
dividends to R and D spending in the UK is three and a half times higher than
in the USA, 10 times higher than in Germany, and 13 times higher than in
Japan.46 Furthermore, in the global free market economy, the ownership of
industries once thought to be strategic is passing to those whose interests are
very different from those of the previous owner. It is difficult to believe that
this state of affairs can continue for long without draining the very lifeblood of
democracy.
It is important to restate some of these larger ideas in the face of those who
believe that life is too fast-moving for governments to seek to intervene in
order to reassert principle. Such people clearly are wrong, but it is important
to stress that there is no simple progression between professed goals and
current, shifting, power configurations. Experimentation and flexibility are
crucial; but this was ever so, as witness JS Mills plea for experiments in
living. In such shifting circumstances, it is important for the law, and
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adoption of explicit values, the monitoring of key relationships, and the duty
to pay regard to the interests of the company as a whole, rather than simply to
shareholders. That being said, however, the recent Hampel Committee report
on corporate governance appears to swim against the tide by arguing for
more concern with shareholders and less with accountability. However, a
number of commentators believe that many of the corporate clashes and
scandals of the last decade have seen shareholders kept in the dark. 52
Hampel has not been well received by critics of the status quo and it remains
to be seen how influential it will prove to be in light of the present
Governments plans for a fundamental review of company law.
It is worth mentioning too that the current system of corporate governance
reflects an earlier stage of capitalism, when finance for setting up and
investing in companies was raised primarily from individuals who were
dependent upon other people to undertake day to day management. The
present law merely encourages take-overs, which independent research has
shown to have little or no beneficial impact on performance.53 In order to
come to terms with reality, and to encourage the recognition of wider
responsibilities, company law will have to be reformed. In my view, the
centrality of the corporation requires that the basic moral framework of
corporate governance should be set out in the constitution itself.
Whether the EU can work significant change in this respect depends on
whose hunches we back. The EU starts from the International Labour
Organisations proposition that labour should not be regarded merely as a
commodity or article of commerce and Art 117 of the Treaty of Rome is clear
that Member States should promote improved living conditions and
standards of living for workers.
It is important to say a word about the legitimacy of State intervention in
the affairs of private companies in order to head off anticipated criticism:
[Companies] actions are made possible by a combination of legal protections
and other facultative devices which make it abundantly clear that the State
facilitates their conduct. They are not simply players in a market place but
frequently are favoured players in a constructed market place. If this is correct,
then the State has the right to remake the terms and conditions of operations in
the market to reflect the human rights which the State is established to protect
Both the rights of citizens and the needs of the economy require that the
system of corporate governance reflects codes of duty as well as of rights. This
is demanded of citizens: no less should be expected of collectivities.54
and to pretend that all citizens are equally invested with a real measure of
choice. A benign system of company law would respect those concerns,
whether that respect be required by primary legislation or, as I have suggested
would be better, entrenched. It may be thought that special status ought to be
given to the rules which govern finance and industry and it made clear that
they are distinctly constitutional concerns.
This argument is not limited to the industrial or provident sector, but also
extends to the voluntary sector. The 1996 NCVO Report is clear that the
freedom of citizens to engage in voluntary action is crucial to the health of
democracy.56
Any abridgement of this fundamental right needs to be cogently argued
from first principles. This is patently not what has happened in recent years.
Constitutional entrenchment therefore is a necessary corrective to the
abridgement which nevertheless has occurred. The right to associate and to
form associations is common currency in the constitutions and treaties of the
world.
Genuine participation also requires a degree of spiritual and material
freedom. Given the continuing centrality of work, core labour standards need
equally to be observed. To this extent trades unions are fully entitled to
campaign for the universal acceptance of those standards by countries and
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global corporations, something to which even the WTO now pays lip service.
The TUC is also fully entitled in the court of morals to argue at least for
workers to be afforded the legal right to consultation before decisions
affecting them are taken.57
Beyond these basic measures, the nature and extent of participation is
bound to be experimental. For instance, the American Federation of LabourConfederation of Industrial Organisations is harnessing workers pension
money in order to make corporations more responsible to workers, to create
jobs and security; the EU is experimenting with territorial employment pacts
to give maximum added value to the structural funds; and the TUC is actively
promoting employee representation committees with a wide range of
responsibilities, for example, for disciplinary procedures and training and
production methods. Proposals also exist for employment impact statements,
analogous to EIAs, which would be required whenever plans were afoot to
relocate, change employment practices, or down-size.
Once more, the EU is potentially the most active player. The social
partners are a fact of Community life, with their roles potentially far reaching.
Currently, of course, those partners must be consulted by the Commission
when proposing labour and social policy initiatives which take their impetus
from Art 118 of the Treaty of Rome as amended by the Single European Act.
There are fashions in social policy, and some see the Working Time Directive
as a sign of the resurgence of the radical version of worker rights set out in the
Paris Treaty which established the European Coal and Steel Community
(ECSC).58 It may perhaps be the case that this sign points ultimately to a
social constitution for the EU. There are clearly prime movers who envisage
an active, combined, labour/social policy, as was suggested by the Green
Paper on the future of labour policy of November 1993. This Green Paper
speaks the language of participation in decision making processes and, most
notably, the language of reconciliation between work and home life. This is a
concept with dramatic potential,59 not just for work but for the whole spirit of
community, a spirit entirely in keeping with the philosophy of this chapter.
As with company law, new labour legislation promoting active rights to
participate in the workplace are required, but again such legislation will need
the additional protection of constitutional status. Before examining the nature
of that status, I will first say a little about what, for the sake of argument, I will
call the social market economy.
Not only do the constitutions of the former Eastern bloc countries seek to
underwrite social protection through declarations about a social State, albeit
committed to market principles, but references to dignity, freedom and
democratic entitlements abound. Nearly all these constitutions have been
drafted in close consultation with the Council of Europe, and there now is a
body of distinguished opinion emerging that a modern constitution owes
deeper obligations to the human condition than those considered at earlier
periods in the free worlds history.60 Whilst first generation civil and political
rights remain, of course, of the highest importance, and recent UK legislative
proposals to enhance these are examined in this book by John Wadham,
determining the potential of constitutionally providing of second generation
social and political rights to foster participation is, perhaps, the most crucial
issue in current debate about participation. It is examined in this book by
Mary Seneviratne, and by myself in Chapter 12.
Perhaps the social market economy can be traced back to the West
German Constitution after the Second World War. 61 This Constitution
includes the rights of property and inheritance, freedom of choice in the
exercise of a trade or profession, freedom to form or join economic or trade
associations, freedom of economy and commerce flowing from the general
right to personality, and the principle of the social Welfare State. The former
ECSC espouses similar values by not only proclaiming a commitment to
democracy as the only system of government, but also a commitment to
economic liberty and free market economics. The new constitution of South
Africa also refers not only to basic civil and political rights, but to socioeconomic rights such as the right to education, housing and language. One
commentator has remarked that: notions of democracy, transparency,
60 On the dilemmas involved in invoking positive rights, see Sunstein, Against positive
rights, pp 3538.
61 Kommers, Politics and Commerce in the Federal Republic of Germany: Basic Documents.
25
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REGULATION
Regulation of private fiefdoms is a worldwide phenomenon. It has, of course,
been especially important in relation to the utilities since the early 1980s. In
the UK, regulation has often been criticised as constituting a private bargain
between the expert regulator and the regulated industry, as Tony Prosser
points out in this book. The arrangements for public participation in the
regulatory process have been pragmatic and piecemeal, sometimes involving
intermediary, though non-elected, bodies representing a supposed public
interest, and, less frequently, by direct intervention by interested publics.
It is early in the life of the new British Government, but proposals for
reform already abound. The most radical moves have undoubtedly been
made through the discretionary activities of the Director General of OFTEL,
most recently through the development of regulatory proceedings modelled
on those in the US which positively encourage participation by interested
groups and the appointment of an advisory body on fair trading in
telecommunications.68
I have argued elsewhere that statutory rights of intervention in decision
making by the utilities ought to be introduced in order to enfranchise
interested citizens and groups.69 Backed by a more general constitutional
right to participate, the opportunity to fashion flexible but effective methods
for public intervention would be greatly enhanced in this way.
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latter could be expected to play a crucial role, elaborating upon the primary
rights under changing conditions and in the context of the needs of the times,
the pace of social movements and expectations and so on. Furthermore, if we
abandon our beliefs that courts or other legal institutions are only suitable for
defining simple rights/duties/entitlements then we can see how our
constitutional expectations could unfold gently and, hopefully, consensually.71
For a while now, such talk has been unfashionable. Minimal government and
minimal State have been elided as a necessary response to global technology.
The worm, however, is beginning to turn.
CONCLUSIONS
There is a good deal of both theoretical and empirical work to be done to put
flesh on these conceptual bones. In particular individual branches of the law need
to be re-examined to see how far they can be redesigned to give force to the
rights of citizens to a greater degree of participation in all forms of social
organisation.72 Apart from an irreducible private sphere (which itself needs to
be guaranteed by an assertion of social and economic rights), participation
needs to be reasserted across the whole of the social organisation.
Discrete work needs to be done, not only in the field of public law, politics
and public administration, but in the field of social welfare (which has
perhaps been underplayed in this chapter),73 education and health, company
and competition law, the law of voluntary organisations, labour, the cooperative movements, charity and community law, labour, the environment
and more besides. An assessment will also need to be made of the operation of
the constitutions of the former Iron Curtain countries, perhaps through a
contribution from the Council of Europe or the Venice Commission on
Human Rights. Each of these areas needs to be examined to look for methods
of improving participation by individuals and groups and for offering insights
into just how specific constitutional principles can afford to be in this area. It is
hoped that the contributions to this book will explore the implications of these
issues in most of the areas in which it is most pressing that those implications
assessed.
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30
CHAPTER 2
Kevin Dowd
31
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The root of the difference between Douglas and myself is the old issue of
positive rights. Whilst we both believe in the classic negative rights (that is the
rights to life, liberty and property), he believes in a variety of additional,
positive, rights (for example, the right to be provided with adequate housing),
and I do not. My main objection to such rights is that they imply that
someone else must be liable for the means to satisfy them, so my right to a
house implies that someone else must provide the house for me.
Unfortunately, the obligation of that other person to provide me with a house
does not square with their freedom to life and property (that is, their freedom
not to provide a house for me). My positive freedoms would undermine other
peoples negative ones. The idea that we can have both positive and negative
rights is therefore an illusion. We must choose one or the other, and I choose
the latter. There are also other problems with positive rights. Most obviously,
how are such rights determined and how are they different from the merely
desirable? Also, how do we ensure that these rights whatever they are are
satisfiable, and what mechanisms ensure that individuals positive rights are
actually satisfied?
This difference over positive rights leads, in turn, to differences over the
role and, indeed, legitimacy of the State. Given his belief in positive rights,
Douglas quite naturally sees a role for the State in ensuring that peoples
positive rights are satisfied. This implies a certain view of the constitution as
an enabling institution, or set of institutions. In that view, the task of the
constitutional scholar is to clarify these rights and spell out the mechanisms
on which their satisfaction depends to put flesh on the constitutional bones,
as it were. However, I have no sympathy with this view of the constitution
because it violates true (that is, negative) rights, and I believe that no
constitution that violates these rights is worth having.
Be this as it may, I also believe that the constitutional project that Douglas
and other scholars are working on will inevitably collapse under the weight of
its own internal contradictions. It is doomed to fail because there is no way of
identifying rights or, more precisely, separating out rights, on the one hand,
from desires, demands, or whatever, on the other. What will happen what is
happening is that over time more and more demands become elevated into
rights and the constitution the supposed guarantor of our rights becomes
increasingly unable to cope. Conflicts between different rights grow and are
never resolved; mechanisms to enforce rights become more complex and
contradictory and lose whatever effectiveness they might once have had; and
the danger is that we effectively lose the rights we had in the first place. True
and very limited notions of rights are replaced with an ever-growing wish
list of trendy pseudo-rights, and the constitutional ship which was never
particularly seaworthy at the best of times slowly sinks under the
deadweight of its cargo. Rights multiply like medieval religious relics and, in
the process, lose all value and meaning. A constitutional Martin Luther will
32
then appear and sweep these useless rights away, and the danger is that he
will sweep away the good ones as well.
No group the State included therefore has any legitimacy, other than that
rooted firmly in, and consistent with, the rights of individuals. Consequently,
the libertarian has no time for theories of state sovereignty or state legitimacy
based on gobbledegook like the divine rights of kings, nonsense about
fictional social contracts, or the equally indefensible modern day belief that
State legitimacy derives from some mysterious mandate from the people (for
example, via popular votes), as if the people (or, more properly, some subset
of them) are free to give away the rights of others: no group, however big, has
any right to infringe the rights of others, or delegate others to do so on their
behalf. The fact that some bandits 1,500 years ago murdered their way to
political power gives neither them nor their successors nor their successor
institutions kings or parliaments a right to rule the rest of us, and never
did. There is no divine right of kings, there never was any social contract, and
the fact that modern parliaments are democratically elected is irrelevant.
Again, to quote Rothbard:
1
2
3
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The State habitually commits mass murder, which it calls war, or sometimes
suppression of subversion; the State engages in enslavement into its military
forces, which it calls conscription; and it lives and has its being in the practice
of forcible theft, which it calls taxation. The libertarian insists that whether or
not such practices are supported by the majority of the population is not
germane to their nature: that, regardless of popular sanction, War is Mass
Murder, Conscription is Slavery, and Taxation is Robbery.4 The libertarian, in
short, is almost completely the child in the fable, pointing out insistently that
the emperor has no clothes.5
5
6
Some statists have attempted to defend taxation on the grounds that it is somehow
voluntary. Rothbards response is typically to the point: Anyone who truly believes in
the voluntary nature of taxation is invited to refuse to pay taxes and to see what then
happens. (Rothbard, For a New Liberty: The Libertarian Manifesto, p 26.) The fact that
some politicians pass a law compelling me to pay taxes does not make my payment of
taxes a voluntary act on my part, and the fact that a group of other individuals might
have voted them in to pass such a law still does not make it voluntary. To say that
taxation is voluntary is an abuse of the language.
Rothbard, For a New Liberty: The Libertarian Manifesto, pp 2425.
Ethically, the libertarian position can be defended on the grounds that people can only
behave ethically if they are free to choose: the freedom of the individual is, therefore,
indispensable to any morally good society (Johnson, Freedom: the moral foundation).
Machan summarises the argument very elegantly: A central feature of an objective
moral value judgment and conduct is that a person must be able to choose Bona fide
moral theorists have all understood that one cannot force others to behave morally
moral conduct must be the agents own choosing ... So a central feature of morally
relevant conduct is that it is chosen and if imposed or regimented, its moral significance
vanishes If one behaved as a good citizen or a charitable person simply because one
is dreadfully scared of the State placing one in jail, one would not be a good citizen or
person, but barely more than a circus animal. So it is wrong to confuse conduct one
should have engaged in of ones own free will with regimented behavior imposed by
some planning authority, politburo or regulatory agency. There is, in short, no such
thing as coerced moral conduct. (Machan, Two kinds of individualism: a critique of
ethical subjectivism, p 3.)
The strength of the anarchist position is also apparent from the devastating critiques
made by anarchists of Nozicks attempts to justify the State in his Anarchy, State, and
Utopia. Eg, Barnett, Whither anarchy? Has Robert Nozick justified the State?; Childs,
The invisible hand strikes back; and Rothbard, Robert Nozick and the immaculate
conception of the State.
34
Public goods
The provision of public goods10 was long regarded as a classic area where
market failure justified government intervention.11 The argument was that the
non-rivalrous nature of public good consumption and/or the inability to
exclude others from consuming public goods made it impossible for private
producers to make a sufficient return from producing those goods to induce
those producers to provide such goods (to the optimal level). However, this
8
If one is to demonstrate Pareto superiority (or the lack of it), it is very important to
avoid loose thinking over the meanings of the terms market failure or externality. A
market failure must imply some form of inefficiency (that is Pareto inferiority) and
(although many writers seem to forget this) is not to be confused with an outcome (eg,
large scale inequality of wealth) that a particular writer might not like. The fact that I do
not like a particular outcome does not make it a market failure in the proper sense of the
term. Similarly, if we are trying to justify particular institutions or policies, the only
relevant externalities are Pareto relevant ones, and these are much more specific than
mere external effects (eg, the owner of a petrol station who is economically harmed by
the opening up of a competitor across the street faces an external effect, but, not a Pareto
relevant externality). Again, loose discussion will undermine whatever validity the
exercise might have had.
9 Note, too, that the argument put forward in the text understates the case for anarchy
because it does not consider the direct operating costs of the State itself, nor the
deadweight, disincentive and other costs associated with raising revenue for the State
via taxation, and both these costs are very large. When one takes these costs into
account, the economic case for anarchy is therefore even stronger than the text suggests.
10 A public good is a good with one or more of two characteristics: non-excludability,
referring to the impossibility of preventing non-paying individuals from enjoying
whatever services the good provides; and non-rivalness in consumption, meaning that
consumption by one person does not diminish the consumption available to others. See
Cowen, Public goods and externalities: old and new perspectives.
11 Samuelson, The pure theory of public expenditure; and Bator, The anatomy of market
failure.
35
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argument overlooks the large number of ingenious ways in which the private
sector is able to overcome these obstacles and provide public goods.12 The
argument that the private sector would not produce public goods is also
refuted by abundant empirical evidence that the private sector has been able
to provide them, a famous case being the private provision of lighthouses in
the UK before the mid-19th century.13
Historical examples
The individualist position is also borne out by a number of cases of societies
that appeared to function well in the absence of any recognisable State
involvement. Some examples are the medieval law merchant,18 which
governed mercantile trade for centuries; the legal systems of Anglo-Saxon
England;19 saga Iceland;20 medieval Ireland;21 and even those of the frontier
areas of the 19th century US, that is, the not so Wild West.22 These and other
cases of stateless (or nearly stateless) social order confirm that anarchy is not
chaos, and that private agencies will provide for the preservation of social
order, and, in so doing, develop and/or use their own systems of legal rules.
These cases also indicate that stateless social orders are relatively peaceful,
because most parties to disputes have incentives to seek less costly (that is,
peaceful) rather than expensive (that is violent) means of resolving disputes.
This applies even to the so called Wild West, which, notwithstanding all the
cowboy movies, actually turns out to have been very orderly and peaceful,
and far more so than the US today.
Another prominent feature of these peaceful spontaneous orders was that
they evolved their own, private, institutions to provide for major social needs
most prominently, institutions to provide for the support of those unable to
look after themselves (for example, such as the unemployed, the disabled, and
the very young and very old), educational institutions, and institutions to look
after the sick. These institutions were funded and run on a voluntary, and
often charitable, basis, and did not depend on State handouts. They were often
also very successful in achieving their ends.23 For example, their effectiveness
in the educational field is well illustrated by the fact that widespread literacy
was first achieved in both America and Britain by privately funded education
systems, well before State education systems were set up.24 Society is, thus,
quite capable of developing institutions to handle all major social needs,
without any assistance from the State, and the idea that only the government
is capable of providing social assistance, education and other services is
another 20th century myth.
18 Benson, The spontaneous evolution of commercial law; Benson, The Enterprise of Law:
Justice without the State; and Trakman, The Law Merchant: The Evolution of Commercial
Law.
19 Benson, The spontaneous evolution of commercial law; Benson, The Enterprise of Law:
Justice without the State, pp 2130.
20 Miller, Blood Taking and Peacemaking: Feud Laws and Society in Saga Iceland.
21 Peden, Property rights under Irish celtic law.
22 Hollon, Frontier Justice: Another Look; and Anderson and Hill, An American experiment
in anarcho-capitalism: the not so wild, Wild West.
23 Watner, The most generous nation on earth: voluntaryism and American
philanthropy.
24 Watner, An octopus would sooner release its prey: voluntaryism versus educational
statism.
37
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Tanner, The End of Welfare: Fighting Poverty in the Civil Society, pp 13149.
Goldberg, Why Schools Fail.
Ibid, Tanner, pp 16972.
Ibid, Tanner, pp 95125.
The creation of these entitlements is also morally bankrupt: under the pretense of
morality, politicians and advocacy groups have made the right to welfare the
accepted dogma of a new State religion, in which politicians are the high priests and
self-proclaimed benefactors of humanity ... Politicians put on their moral garb, but
there is really nothing there. Government benevolence, in reality, is a naked taking.
Dorn, The rise of government and the decline of morality, p 9.
38
The earlier monitoring of charitable activities by donors has now gone, and
the government bureaucrats who administer the new programmes do not
have the same incentives as their private sector predecessors to return their
clients to productive life. Indeed, their incentives are often to keep recipients
on their books, and so perpetuate the social problems they are supposed to
ameliorate. In effect, government now pays people to be behave anti-socially
to be indigent, and so forth and the supply of anti-social behaviour naturally
rises to meet the demand for it. It is not surprising, then, that huge amounts
are spent on these programmes and yet the programmes themselves seem to
have little success in reducing the problems they are ostensibly meant to
alleviate. The proponents of these programmes are then left wondering why
the underclass grows despite the vast amounts of money spent on
programmes to assist these people. The reality is simply that the underclass
grows precisely because so much money is thrown at it.30
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If one accepts this point of view, it follows that fostering participation in the
political process is misguided because it gives that process a legitimacy it does
not deserve:
Participation is an instrument of conquest because it encourages people to give
their consent to being governed ... Deeply embedded in peoples sense of fair
play is the principle that those who play the game must accept the outcome.
31 The issue of whether or not to vote has long been a major bone of contention in
libertarian anarchist circles. There was a particularly fierce debate on the issue in the
pages of Benjamin Tuckers periodical Liberty in the 1890s. Interestingly, the dominant
view including that of Tucker himself and prominent contemporaries such as
Lysander Spooner was against voting: Individualist anarchism [in this period] was
overwhelmingly anti-political If libertarianism of the late 19th century stood for any
one principle it was opposition to the political solution to social problems. McElroy,
The culture of individualist anarchism in late 19th century America, p 301.
32 Watner, The tragedy of political government, p 5.
40
Those who participate in politics are similarly committed, even if they are
consistently on the losing side. Why do politicians plead with everyone to get
out and vote? Because voting is the simplest and easiest form of participation
by masses of people. Even though it is minimal participation, it is sufficient to
commit all voters to being governed, regardless of who wins.33
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which the early Labour Party stood. Unfortunately, these traditions were then
gradually pushed into the background as socialist influences grew and beliefs
in individual responsibility were correspondingly eroded. However, now that
the Labour Party has thrown socialism onto the scrapheap, the time is surely
right for Labour to rediscover its own roots and start putting right the damage
governments of all parties have done over the last century or so.
34 Angell, The information revolution and the death of the Nation State, p 2.
42
future, it will matter less and less what State individuals belong to, but what
networks, economic alliances, local communities and other voluntary
associations they choose to deal with. In sum, individual choice is growing
just as state power is declining. At the same time, the State is also facing an
escalating legitimation crisis:
Everywhere the Nation State is in retreat. All the while citizens are losing their
faith in the Nation State ... For the State is failing to deliver its side of the
Faustian pact, where the individual submits to the legitimate violence of the
State in return for protection and security. Globalisation has shown the James
Bond myth, that the State is good and global corporations (Spectre) are bad, to
be blatant propaganda on behalf of the Nation State. James Bond, the patron
saint of the Nation State, is now just another dirty old man.35
The withering away of the State might, just, be one prediction that Karl Marx
got right.
35 Angell, The information revolution and the death of the Nation State, p 3.
43
CHAPTER 3
1
2
3
4
5
6
I should like to thank Peter Vincent-Jones for his comments on this chapter. My work
on this chapter was supported by ESRC grant R000236416.
Collins, The Law of Contract, ch 2.
Turpin, Government Procurement and Contracts. A very early and remarkably prescient
analysis of the shift in the nature of public contracting I wish to describe is given in
Daintith, Regulation by contract: the new prerogative.
Harden, The Contracting State.
Williamson, The Mechanisms of Governance, ch 4.
Oliver, The underlying values of private and public law; and Oliver, Common values
in public and private law and the public/private divide. On the same process viewed,
as it were, from the opposite side, cf, Dalton, An essay in the deconstruction of contract
doctrine, pp 101011.
45
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The second point that is made about this form of contract, however, sits rather
uneasily with this first. It is that this form itself appears directly to embody the
merger of private and public because it continues to display both of what
formerly were regarded as private and public characteristics. The new form is
hybrid in that it stands between9 and is composed of a mixture of both of the
old organisational forms:
7
8
9
Markets and hierarchies are polar modes The hybrid mode displays
intermediate values the hybrid mode is located between market and
hierarchy with respect to incentives, adaptability and bureaucratic costs. As
compared with the market, the hybrid sacrifices incentives in favour of
superior co-ordination among the parts. As compared with the hierarchy, the
hybrid sacrifices co-operativeness in favour of greater incentive intensity.10
Promoting Participation
The welfare claim made for the spontaneous order22 of the invisible hand23 of
the market is, as we have known since at least24 Mandeville, 25 that it
incomparably efficiently transforms private vices into public benefits. It is
crucial for our purposes to recognise that this transformation may work in the
way claimed only by eschewing the conscious public pursuit of benefit by
alteration of the private vice. (To prevent confusion arising later in this
chapter, let me anticipate my later argument by saying that I do not believe
this claim is entirely correct.)
Though the first theorem of welfare economics entails the policy
recommendation that markets should, where possible, be encouraged, those
economics have largely been concerned to identify circumstances where there
is such a divergence between, as AC Pigou has it in Part 2 of The Economics of
Welfare, the private and the social marginal net product of an investment,26
that State intervention might increase the welfare function:
Certain optimistic followers of the classical economists have suggested that the
free play of self-interest, if only Government refrains from interference, will
automatically yield more economic welfare than could be attained by any
arrangement other than that which comes about naturally if private and
social net products everywhere coincide, the free play of self-interest will
tend to bring the sum of economic welfare to a maximum when marginal
20 I am trying to describe a claim for the necessity of private property internal to the
functioning of the market as a form of allocation, as distinct from other, broadly
Lockean, arguments for the, as it were, substantial necessity of such property for
freedom. Locke, Two Treatises of Government, Vol II, ch 5. The argument of this chapter
does, however, have implications for this argument of Lockes which I will not pursue.
This argument about allocation is addressed to the voluntariness of private exchange
and not directly to the claim that rational economic calculation requires private
property. See von Mises, Socialism, chs 56; and Weber, Economy and Society, ch 11.
These claims cannot, however, ultimately be distinguished.
21 Hayek, Law, Legislation and Liberty, p 65 (original emphasis omitted). Cf, Hume, A
Treatise of Human Nature, p 526.
22 Ibid, Hayek, Vol 1.
23 Smith, The Wealth of Nations, p 456.
24 Keynes, The General Theory of Employment, Interest and Money, pp 35962.
25 Mandeville, The Fable of the Bees.
26 Pigou, The Economics of Welfare, Pt 2, ch 2, section 5.
49
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private net products and marginal social net products coincide, any obstacles
that obstruct the free play of self-interest will, in general, damage the national
dividend. In real life, of course, marginal private and marginal social net
products frequently do not coincide When there is a divergence between
these two sets of marginal net product, self-interest will not tend to make
the national dividend a maximum; and, consequently, certain specific acts of
interference with normal economic processes may be expected, not to
diminish, but to increase the dividend.27
The concept of contract has been radically altered in the light of this
recognition of market failures and acceptance of public goods. The main
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Promoting Participation
obtaining in Britain after the passage of the Railway (Fires) Act 1905.53 Having
claimed that the common law of nuisance would impose a liability on the
railway company causing the damage,54 Coase argued that it was only
because the State extended protection against the common law to the railway
companies that they were able to proceed in the way they did. The 1905 Act
allowed claims of up to 100 against the railways, other claims being in effect
barred by previous statute. (The general point is that the building of the
railways was, in essence, accomplished by expropriation on the basis of
compulsory purchase under a succession of Private Acts.)55 Of course, in the
light of this, Pigous proposed tax solution may well be supererogatory.
Rather than Pigous example being a case where it was necessary for State
action to improve on natural tendencies, it might well have been a case in
which a reversion to common law property rights through what we would
now call deregulation was plausible, for: the situation in which sparks form a
railway locomotive could start fires which burnt woods on land adjoining the
railway without the railway having to pay compensation to the owners of the
woods had come about not because of a lack of governmental action but
because of it.56 If the landowner were able to sue in common law, the railway
would have to decide either to obtain a permission to damage nearby
property (by buying the freehold or an easement, etc) from the landowner
(financed from revenues of operating the trains) or not to build (if those
revenues would not cover the cost of the permission), and the market would
produce a solution without necessity of State intervention.57
In the light of the subsequent development of law and economics, which
has been characterised by the advocacy of market solutions in the most
ridiculous circumstances, it is as well to stress that Coase did not advocate a
property rights solution to the sparks problem in The problem of social
cost.58 (To the extent that that article makes any concrete policy suggestions,
it is that the State is best equipped to handle the related problem of smoke
53 Most modern references to Pigou are to the 4th edn, 1932 (subsequently reprinted).
However, Pigous treatment of the railway example had remained substantially
unchanged from the 1st edn, 1920, which itself was largely based on his Wealth and
Welfare, 1912.
54 Coase, The problem of social cost, pp 137, n 43. Coases reading of nuisance cases in
The problem of social cost has been called into serious question by the distinguished
legal historian AWB Simpson in Coase v Pigou re-examined. Coase came rather badly
out of an ensuing exchange with Simpson, when his usual balance and wit appear quite
to have deserted him. Coase, Law and economics and AW Brian Simpson; and
Simpson, An addendum. However, this does not affect the basic argument made here.
55 Dobbin, Forging Industrial Policy, pp 16775.
56 Coase, The firm, the market and the law, p 23.
57 Coase, The problem of social cost, pp 13349.
58 Campbell, On what is valuable in law and economics, pp 498503; and Campbell and
Picciotto, Exploring the interaction between law and economics: the limits of
formalism, pp 25960.
54
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65 Miles and Snow, Network organisations: new concepts for new forms.
66 Luhmann, Social Systems.
67 Hutter and Teubner, The parasitic role of hybrids, p 116.
56
But, of course, if this sort of origin is acknowledged, it means that the hybrid
is not a structure sui generis (and, of course, there are no such forms), but
rather a structure the history of which is to be found in the development of the
strong distinction between market and hierarchy, or, rather, in the decay of
that distinction. The hybrid, I want to argue, is in fact is a stage in the
development of the relationship of private and public spheres, that stage
when the public critique of the private has now been complemented by the
private critique of the public, and the merging of the private and the public, in
which their mutually constitutive opposition disappears, is posited. As such,
far from representing novelty, the hybrid represents the latest stage in the
attempt to come to terms with the failure of the enlightenment project69 of the
critique of civil society from the perspective of the State70 that is to say, the
failure of what so far has passed as socialism. The hybrid is, I believe, a
positive response to that failure which allows us to distinguish regulation
from intervention in future socialism.
Promoting Participation
I also quote Smiths most famous illustration of the operation of the invisible
hand:
It is not from the benevolence of the butcher, the brewer, or the baker, that we
expect our dinner, but from their regard to their own interest. We address
ourselves, not to their humanity but to their self-love, and never talk to them of
our own necessities but of their advantages.75
However, it is not to either of these passages that Pigou directs his criticism of
the invisible hand, but to the following:
71 Pigou, The Economics of Welfare, pp 12829, quoting a 1913 paper by EA Cannan which I
have so far been unable to trace.
72 Coase, The problem of social cost, p 134.
73 In The problem of social cost, n 38, Coase seems to wish to imply that Pigou thought
Cannans argument effected only followers of Smith and not Smith himself. On the
basis of my own reading of this part of The Economics of Welfare, I cannot agree that
Pigou was at all hesitant about attacking Smith, and I shall treat him as doing so.
74 Smith, The Wealth of Nations, p 456. Smiths text has to be very substantially abridged to
make it easily illustrate what is now understood as the basic point of the invisible hand,
and I have followed the editors of the Glasgow edition of Smith in making my
abridgement. Smith, Theory of Moral Sentiments, p 184, n 7.
75 Smith, The Wealth of Nations, pp 2627.
58
Pigou evidently thinks that Cannans criticism of the invisible hand disposes
of this basic argument against intervention and proceeds, in the remaining 284
pages of Part 2 of The Economics of Welfare, to set out the apparatus for
distinguishing between private and social net products that has since
grounded intervention. But Coases criticism of Pigou allows us to see that
Pigou has missed his mark in Smith, and that Pigous choice of quotation from
Smith is ample evidence of this. In this quotation, Smith is setting out an
argument against intervention in functioning markets which, of course, so
tells against the industrial policy which has been adopted in the UK since
194577 that it could (with stylistic alterations) easily be passed off as a general
conclusion about that policy. Pigou obviously is disinclined to accept this
argument and, were he to set out a case for intervention which showed
awareness not merely of market failures but of the difficulties of improving on
the position produced by the market, one would be compelled to consider it at
length. But, to take only his most important general case, Pigou is prepared to
consider permanent bounties to shift the entire industrial system away from
equilibrium based on a particular distribution of goods to an equilibrium
based on another distribution (in which less of a good disliked for moral and
political reasons or more of a good favoured for such reasons would be
produced), even though: [t]he conditions in which bounties are likely to have
this effect, he fairly says: are somewhat special. He concludes, however, that:
it can be proved that, in certain states of demand and supply, some rates of
bounty must have this effect, and, the clinching point, those states can readily
be depicted in a diagram.78
There could be no clearer example of what Coase calls blackboard
economics:
many propositions of modern welfare economics [are more] concerned
with diagrams on a blackboard than with the real effects of such policies on the
working of the economic system. I have referred to this type of economics as
blackboard economics because the whole process takes place on a
76 Pigou, The Economics of Welfare, pp 12728, quoting (with indicated omissions) Smith,
The Wealth of Nations, p 687.
77 Crosland, Government and industry.
78 Ibid, Pigou, p 141.
59
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blackboard. This is not the way one operates with a social system. All that can
be done is set up a new agency, or change the rules under which an old agency
operates, or take some other similar action. All that is possible is to operate on
social institutions and to discuss social policy in a sensible way; it is necessary
to consider the effect of changing the social institutions with which we work.79
79 Coase, The theory of public utility pricing and its application, p 119.
80 Pigou, The Economics of Welfare, p 128.
81 These noble savages with a suspiciously contemporaneous cast to their character used
to be described as Robinson Crusoes. I do not suppose a better joke about such figures
will ever be made than Marxs at Ricardos expense when Marx perfectly accurately
described Ricardos own Robinsons calculating the value of their tools and labours as if
in accordance with the annuity tables in use on the London Stock Exchange in 1817.
Marx, Capital, Vol 1, p 169, n 31.
82 Sunstein, Free Markets and Social Justice, p 384. This general point has been applied
powerfully to the regulation of privatised utilities in Prosser, Regulation, markets and
legitimacy, p 237.
60
83
84
85
86
87
Pigou, The Economics of Welfare, p 128, quoting Pareto, Manual of Political Economy, p 341.
Ibid, Pigou, p 128.
Ibid, Pigou, p 128, quoting Cannan, The History of Local Rates in England, p 176.
Hobbes, Leviathan, ch 13. On the role of the law of contract specifically, see p 196.
von Mises, Socialism, p 36.
61
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After Coase we can properly appreciate that fully contingent markets are
markets at zero transaction costs, that is to say with information gathering,
communication and enforcement costless. But, information gathering,
communication and enforcement costs will always be positive, so that the
existence of such markets is a very unrealistic assumption.95 The thrust of
Coases work is to reject the view of the economic system as it is normally
treated by the economist96 and demonstrate that there is a cost of using the
price mechanism97 in order to draw attention to the existence of transaction
costs in empirical markets and therefore to call for the explanation of
particular markets as specific social institutions. Even an economic policy
committed to the allocation of goods by markets whenever reasonably
possible must pursue not the absence of regulation but the regulatory
constitution of markets.98 Neo-classical economic analysis can be used as a
guide to economic policy formulation only when balanced by an appreciation
that action (for all practical purposes) conforming to its assumptions can take
place only within facilitative institutions, markets, established for this
purpose. (And as empirical markets have positive transaction costs, these
must be weighed against alternatives which boil down to the firm or the
State and their hybrids with the firm and the State themselves being (from
this perspective) explained as structures which minimise transaction costs
under certain conditions.)
94
95
96
97
98
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It is in pursuit of this sort of policy analysis that Coase readily could agree
with Cannan that: the working of self-interest is generally beneficent
because human institutions are arranged so as to compel self-interest to work
in directions in which it will be beneficent. The mechanism design103 of a
governance structure for the allocation of economic goods, even if that
structure be a market, should be work of conscious, public arrangement based
on law, though when the purpose of that arrangement is the allocation of
economic goods, the arrangement typically should facilitate privately
motivated action within itself.104 The question can never be whether to
regulate a market, for without the regulation it cannot exist.
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105 This has been nowhere more tragically shown to be the case than in the former
COMECON economies. In the absurd belief that a general market would somehow
spontaneously arise, the most thoroughgoing deregulation of the former baneful
command economies has been pursued for over a decade. In the absence of the legal
and cultural framework which actually constitutes the invisible hand, the resulting
vacuum has, especially in Russia, been filled up by the most despicable gangsterism. I
have reviewed these developments in an attempt to draw from them their lesson about
the necessity of providing a regulatory, institutional structure for markets in What is
meant by the rule of law in Asian company law reform?. Coase has, to my mind to
his immense credit, has made similar points in passing. Eg, Coase, The institutional
structure of production, pp 6, 12.
106 Lipsey and Lancaster, The general theory of second best.
107 The most sustained general statement of the necessity of constructing an institutional
structure for welfare optimising markets, including the claim that (in Sunsteins terms)
there is no opposition between markets and government intervention [because]
markets are a particular form of government intervention (p 384), of which I am
aware is Sunstein, Free Markets and Social Justice. I intend my basic argument to be
wholly consistent with the Joerges argument that the creation of a proper institutional
framework of markets (p 147) in the EU is a matter of public constitutionalisation
(though I am very sceptical about many EU measures). Joerges, European challenges to
private law: on false dichotomies, true conflicts and the need for a constitutional
perspective. On the specific steps to create a framework for markets being taken in
consumer law, see Howells, ch 16, in this volume. On such steps taken in regard of the
privatised utilities, see Prosser, ch 18, in this volume.
108 Macneil, Bureaucracy and contracts of adhesion, p 6.
109 I ignore that aspect of neo-liberalism which simply denies the persisting unpleasant
qualities of the capitalist economy. I have criticised one of Posners breathtaking sets of
denials in Ayres versus Coase: an attempt to recover the issue of equality in law and
economics, pp 44549, but this is not really the stuff of productive intellectual debate.
At the core of any such debate would be the way that the excellent neo-liberal and
libertarian economists do not deny capitalisms shortcomings but doubt the superiority
of the proposed alternatives. Eg, Nutter, Economic aspects of freedom, p 21.
66
Having set out one or two ways in which the law of contract has
arranged the play of self-interest, Pigou says: This adjustment of institutions
to the end of directing self-interest into beneficial channels has been carried
out in considerable detail.110 In regard of the law of contract, in one sense
Pigou is even more right now than he was when he drafted this. The law of
contract and its related doctrines now constitute a massive apparatus. But, as I
hope we can now see, in another, less obvious but perhaps more important
sense, he is wrong. The massive apparatus of contract has not at its heart tried
to: [direct] self-interest into beneficial channels. Instead, it has accepted
allocations produced by oligopolistic corporations as products of the market
and, having seen that these often are markedly sub-optimal, has attempted to
intervene in them on welfarist grounds.111
These massive interventions have so undermined the will theory of
contract that even the best attempts to revive112 are hopelessly implausible.113
But, as these interventions are ad hoc, they have not grounded a satisfactory
alternative theory of contract.114 As opposed to the well worked out (if
inadequate) claims for market efficiency, the claims for paternalism and
fairness115 in welfarist contract seem indefensibly patchy. It is, however, their
ex post character that makes them appear such. Once it is appreciated that
there is inevitable public involvement in the construction of all markets, then
the, to the extent appropriate, regulation which now is put forward in the
names of fairness and paternalism can be seen to be a necessary part of
securing efficiency in some contracts characterised by a lack of real
bargaining.116 On the other hand, there will be contracts very conceivably
the great majority in which competition should play a major part. But no
contract will ever be reached on a wholly competitive basis and the proper
bounds between co-operation and competition in specific contracts will, of
course, be the principal question to be determined when establishing, or
arranging, that particular governance structure. 117 We must allocate
economic goods through markets, but the establishment of private markets
which optimise welfare is a matter of publicly endorsed institutional
arrangement.118
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119 I am not trying to drive at the attempts, through empirical studies of specific price
formation processes, to give the metaphors for the operation of the market, particularly
Walrasian ttonnements (Walras, Elements of Pure Economics, p 170), some concrete sense.
120 Nozick, Anarchy, State and Utopia, pp 2628.
121 Barnett, Whither anarchy? Has Robert Nozick justified the State?; Childs, The
invisible hand strikes back; and Sanders, The free market model versus government: a
reply to Nozick.
122 Mill, On liberty, ch 4.
123 Berlin, Two concepts of liberty.
124 Locke, Two Treatises of Government, Vol II, ch 5.
125 Macpherson, The Life and Times of Liberal Democracy; Macpherson, Berlins division of
liberty; and Macpherson, A political theory of property. On positive rights, see Lewis,
chs 1 and 12, in this volume; and Seneviratne, ch 15, in this volume.
126 Gewirth, Human Rights.
127 Gewith, The Community of Rights.
128 Gewirth, Reason and Morality.
68
129 Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and
Democracy.
130 Habermas, What is universal pragmatics?.
131 Establishing the content of the social contract which allows for the generation of the
pure procedure of the market is the central task of Rawls liberalism. Rawls, A Theory of
Justice, ch 3. Appearing in 1971, A Theory of Justice summed up work published since
1958. It is very instructive to see how much less ambitious Rawls claims for his
constitutional architecture had become when he revisited these issues in Philosophic
Liberalism published in 1993.
132 Accepting something like the implications of democracy for economic policy
formulation I am setting out, it has been a natural turn of that strand of libertarian
thought which places private property before all else in political analysis (Rothbard, For
a New Liberty, ch 2) to be extremely sceptical or dismissive of democracy. Eg, de
Jouvenal, On Power, ch 14. I will not argue the basic point here, but do wish to point out
that, given the manifest shortcomings of democracy, even if one rejects this social
philosophy as a philosophy, it is not without its appeal as a guide to constitutional
innovation. The limits it would, if ever followed, certainly place on the possible scope of
state intervention is one part of that appeal. Cf, Dowd, ch 2, in this volume.
133 Campbell, Rationality, democracy and freedom in Marxist critiques of Hegels
philosophy of right, pp 6869.
134 Teubner, Juridification: concepts, aspects, limits, solutions, p 27.
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The solution is to effect proper structural coupling between the law and the
social area of life, and the key to doing this is reflexivity. A reflexive law
respects the inner principles of the social area of life to be regulated and seeks
to work with those principles. It does not seek to make direct substantive
interventions which run counter to the inner logic of the social area of life but
to make largely procedural changes which develop the positive features of
that area:
Instead of the comprehensive regulation of substantive legal rationality,
reflexive law restricts legal performance to more indirect, more abstract forms
of social control.135
The hybrid contract emerges as the paradigmatic mechanism for this dialogue
as its structure is given by the double attribution of the hybrid to both
market and hierarchy:
Hybrids work with a new device: double attribution. It is the dual constitution
of the institutional arrangement that constitutes hybrids as an emergent
phenomenon A hybrid operation emerges from the twofold social
attribution to one of the autonomous parties to the contract and,
simultaneously, to the organisation as a whole Hybrid operations are, thus,
emergent phenomena by comparison with mere contractual acts on the one
hand and mere organisational decisions on the other. They refer to contract
and organisation simultaneously. They cannot be reduced to either market
transactions or to organisational decisions. When the dual attribution of action
entered into the economic reconstruction of the social arrangement and was
operationally used there, hybrids were constituted as autonomous actors.137
These points have been made from other theoretical standpoints clustered
around the notion of responsive regulation particularly associated with the
work of John Braithwaite.138 I choose to take them up in Teubner in order to
conclude by restating a point made earlier. Teubner clearly is driving at a core
feature of the type of non-interventionist regulation of markets for which I am
arguing, with his general concept of reflexive law respecting the autonomy of
markets by assisting them to clarify the way in which they are to establish
their own goals. But there are quite unacceptable features of Teubners
account. By this I do not mean the absurd language in which that account is
expressed so much as a theoretical confusion which the language obscures.
The ultimately senseless description of social systems he gives, which borders
on charlatanry, relieves Teubner of the necessity of giving an explanation of
the development he is describing. The peculiar abstraction of the formal
systems described and the incomprehensibility of the claimed independence
and yet relatedness of their autopoetic development allows Teubner to claim
a novelty for the hybrid and for reflexive law as such.
Instead of the novel hybrid form, I suggest we see current developments
in the concept of contract as a continuation of the enlightenment project of the
public critique of private interest in the light of the failure of the communist
and social democratic versions of that critique. The centralised command and
control economy of the former communist countries obviously are now
utterly discredited139 and, though the case of social democracy is more
complicated, its strain of anti-market interventionism, which opposes
liberalism not as necessity but as a positive choice, is equally discredited.
What is needed is, of course, is an economic governance structure which can
respond to these failures in a positive way.
It seems clear that contract will be the main institutional component of that
structure, but, as I have said elsewhere, it will be a reformed, socialist
contract.140 The institution of contract is predicated on individual choice, and
so works against the unacceptable state imposition of goals through
intervention. But contract has betrayed individual choice and so sanctioned
intervention until that turned out to have its own unacceptable costs because
of a lack of awareness of the necessity of public regulation of that institution
which makes it true to its own goals. The hybrid has registered the necessity
of changing the form of contract, but understands itself as terribly novel. This
is unhelpful when the key to designing the new form of contract is to
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understand the history of the concept of contract. The claimed novelty of the
hybrid has produced a number of debilitating paradoxes in current economic
policy proposals of which I will mention just three particularly instructive
ones.
First, in the communitarian political theory 141 linked to moral
economics,142 the critique of intervention has led to an elaboration of the
virtues of civil society. This civil society seems mysteriously to display a
social self-consciousness, and hence a conscious acceptance of the moral
bounds of selfish action, which it was the very purpose of socialism to provide
by the critique of civil society by State. No attempt to address the political
shortcomings which were central to the very identification of civil society as
the modern form of social structure143 is made in this wholly reactionary
communitarianism. This civil society works because, like Smiths rather
civilised competitive behaviour, it actually contains the public dimension
which it explicitly denies.
Secondly, the social market on which much left-wing economic analysis
is focused often makes more or less the opposite error. Aware both of the
limits (of effectiveness) of hierarchical allocations and of the importance of
setting the institutional parameters of markets, such pains are taken in many
accounts of the social market to rule out certain allocations considered
ethically undesirable that no real choice figures in those markets. It is merely a
question of trying to use rigged markets to establish what an improving elite
have already decided were the proper allocative outcomes.144 This is a failure
to see that the appeal of the economic efficiency that drives the success of
neo-liberalism is not some technical efficiency in pursuit of collectively agreed
goals but efficiency in allowing citizens to voluntarily determine their own
goals by a collectively agreed pure procedure. The hard case arises when an
elite in a hierarchical position disagrees with a voluntary choice.145 Given the
position taken in this chapter, the voluntary choice must trump, so long as one
can reasonably be assured it was voluntary. This assurance is, of course,
typically what one lacks in the outcomes of many of the administered,
oligopolistic consumer markets of advanced capitalism.
Thirdly, the New Labour government is at great pains to renounce its
socialist patrimony and insist that it is attempting to steer a third way
between State socialism and free markets.146 One can see the appeal of this as
propaganda, but, of course, it is wholly abstract. The power of the third way
141
142
143
144
145
146
Etzioni, The Spirit of Community: Rights, Responsibilities and the Communitarian Agenda.
Etzioni, The Moral Dimension: Towards a New Economics.
Ferguson, An Essay on the History of Civil Society, Pts 56.
Le Grand and Estrin (eds), Market Socialism.
Eg, Lewis, Choice and the Legal Order, p 35.
Giddens, The Third Way: The Renewal of Social Democracy.
72
seems to lie precisely in its being third, and as such a new type of economic
governance. But that this seems already to have decayed into meaninglessness
as a political programme is only to be expected. If one wishes to know in
concrete terms why capitalist markets and intervention have both proved
inadequate and to improve on them, one must create a governance structure
the very form of which is given by an awareness of the shortcomings of both.
The new structure cannot be novel but must have history at its heart, 147
otherwise it is a merely abstract thirdness. It is a rather good joke that New
Labours desperate attempt to be novel has led it to rest its economic policy on
an abstract synthesis (anything rather than a development of socialism) which
is, of course, an example of the dialectic reduced to an empty,148 lifeless
schema149 which made dialectical materialism a laughing stock. It would
appear that the denied history of socialism is rather having its revenge upon
Mr Blair.
The form of socialist contract we must now devise will have a dialogue
with past failures at its heart. Rejecting intervention but building on our
awareness of the necessity of the social regulation of the institution of the
market, we may approach the problem of institutional design in a publicly
endorsed way. The old privileges of private property cannot stand against this
social self-consciousness, but such self-consciousness, chastened by the
knowledge of the past excesses and outrages committed in the name of the
public, will have a liberal respect for private choices at its heart.150
147 Any socialism developed against the beneficent background of liberalism has, of course,
dealt with just the issues New Labour tries to pretend are novel. Take, for example, the
following from Beveridges informatively entitled lecture Between Cobden and Lenin:
The practical issue does not lie, and is never likely to lie, between planning under
completed socialism and a free pricing process under capitalism. Beveridge, Between
Cobden and Lenin: the dilemmas of planning in the 1930s, p 25.
148 Hegel, Science of Logic, p 837.
149 Hegel, Phenomenology of Spirit, p 30.
150 In Conceptions of property in common law discourse, Rotherham puts forward an
acute argument about the public foundation of private property rights, but then seems
immediately to move to seeing this as license for wider public expropriation, even
without compensation. Whilst I do not at all rule out the measures Rotherham puts
forward in specific cases, social self-consciousness of the public foundation of property
rights should in general lead to an awareness of duties towards property owners.
73
CHAPTER 4
Perri 6
A shorter version of this paper was given at the Public Administration Conference at
Sunningdale on 2 September 1997, commissioned by Gerry Stoker. I should to thank
those attending that Conference and those attending the conference on The
Constitutional Implications of Participation for useful comments and questions. I am
grateful to Ian Christie, Ben Jupp, Kristen Lasky, Steve Ney and Gerry Stoker for
comments and suggestions on earlier drafts. The first section of this paper was
published as 6, How will we feel the morning after?. It is a part of a longer programme
of research being conducted jointly with Kristen Lasky which will examine and
compare British and US cultures of constitutionalism using secondary analysis of a
wide variety of quantitative data sources.
75
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every dusty church hall in small town America is shaped by the prospect that
its demand could one day be entrenched, or constitutionalised. As children
Americans learn the constitutional virtues and vices, learn that pressure group
gridlock (in the sense of a stand-off between opposing groups leading to
paralysis in decision making) is the product of irresponsibility and lack of
restraint in the use of the constitution, and learn that courage, integrity and
honesty are virtues on which the working of the constitution depends. And
this is learned, not from Madison, but from the newspapers and the television.
Constitutions live in the topics about which people gossip. In the US, gun law,
abortion and prayer in schools are daily constitutional conversation.
When the British start to look for their own constitutional culture, they
tend, self-deprecatingly, to say that they do not have one because their
constitution is scattered across dozens of basic documents rather than a single
one. In fact, some very distinctive aspects of a constitutional culture can be
identified in the common expectations of the British people. As befits the
culture of a people whom Lady Thatcher once allegedly called rough, British
constitutional culture is a rough-and-ready, coarsely hewn, unfinished affair.
Moreover, that culture has changed quite a lot during the 18 years of
Conservative rule, and not always in the ways the Conservative governments
intended. Through the 1980s and early 1990s, as public lack of esteem for and
distrust of politicians and civil servants rose, the Conservatives responded
with formal and explicit codes of ethics for ministers, civil servants and MPs,
and multiplied the tribe of ombudsfolk. A special Speakers Commission on
citizenship recommended constitutional education in every school. The British
publics willingness to use the constitutional remedies of judicial review and
other tribunals grew through the same period. New terms were added to the
language for new constitutional vices sleaze, quangocrat, or even
Professor John Stewarts new magistracy, and our constitutional gossip
changed. All these may seem small and surreptitious changes to the
constitution and the culture by comparison with moving around the furniture
in the capital cities, but they are often much more important in shaping the
expectations, confidence, perceptions of the relevance and irrelevance of
different institutions and opportunities for participation, and even the
querulousness of a people.
The Labour Government is undertaking its grand rehanging of the
constitutional collection of old masters in our capital cities. But, the
Government, and, indeed, academic political scientists, would do well to think
more about what effect its constitutional changes will have on the gossip in
the bus queue, on the willingness of citizens to complain, on public
understanding of what taxes are spent upon, on the demand for Legal Aid
and the services of the courts, and on peoples expectations of how the risks
they face in their lives might be met. These things are much harder to establish
than formal systems of powers, accountability and jurisdiction. But not
76
77
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2
3
4
5
There is a large literature on political cultures, but often not directly relevant for the
present purpose (eg, Almond and Verba (eds), The Civic Culture Revisited).
Constitutionalism is usually defined either as a strategy of entrenching (liberal) values,
or a moral theory about why entrenchment is needed, or a justification for giving power
to judges over politicians (Greenberg et al (eds), Constitutionalism and Democracy:
Transitions in the Contemporary World; and Elster and Slagstad (eds), Constitutionalism and
Democracy).
6 et al, The Substance of Youth: The Place of Drugs in Young Peoples Lives Today.
Hebdige, Sub-culture: The Meaning of Style.
78
Mount, The British Constitution Now; and Hennessy, The Hidden Wiring: Unearthing the
British Constitution.
6a Hazell (ed), Constitutional Futures: A History of the Next Ten Years.
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Hirschman, Exit, Voice and Loyalty: Responses to Decline in Firms, Organisations and States.
Hirschman, Shifting Involvements: Private Interest and Public Action.
80
prefer. Some would go further and argue that some balance between activism
and passivity is essential for political stability.9 Others let us call them
activist democrats take the view that very low levels of participation
punctuated only by brief bursts of frustrated expression reflect an
impoverishment of the democratic culture, in which the effective exercise of
liberty has been dampened and dulled by low expectations and cynicism, and
that in such situations unscrupulous politicians can readily manipulate
democratic institutions for undemocratic ends. Therefore, they argue that if
Hirschman cycles cannot be replaced by a continuously high level of
participation based on enjoyment of being part of the decision making
processes, then at least the level of activity, and the number engaging in that
activity in the troughs of civic privatism, should be increased.10 While the
vision offered by the activist democrats is clearly not to everyones taste, it has
proven so attractive to many thinkers, politicians and leaders of social
movements concerned with constitutional reform that it is important to
identify the cultural conditions in which it would be possible to realise that
vision. Yet the principal writers in the activist democracy tradition have rarely
addressed this question, or when they have, their arguments have generally
boiled down to the implausible claim that increasing the opportunities for
participation will completely eradicate the culture of civic privatism, and,
therefore, that there will be no cultural problem in sustaining radical
democracy.11 Some environmental activists have imagined that the Local
Agenda 21 programme created at the Rio summit would be a self-sustaining
experience of local popular participation on the back of a convergence of local
and global environmental concerns.
However, the question of increasing participation still is not sufficiently
precise. For if we are to explore the cultural conditions of greater participation,
we need to ask whose participation is thought desirable, when it is thought
desirable and how desirable participation can be sustained. The question of
the cultural basis of active participation that is evenly or equally distributed
across some key dimensions of a society is a very different and more
In the study of political cultures, this view is associated with Almond and Verba, The
Civic Culture, although it was revived in particularly virulent form in the 1970s by
overload writers suspicious of democracy (eg, Brittan, The politics of excessive
expectations; Crozier et al, The Crisis of Democracy: Report on the Governability of
Democracies to The Trilateral Commission; King, The problem of overload; and Olson, The
Rise and Decline of Nations: Economic Growth, Stagflation and Social Rigidities. For a liberal
rejection of the implications of the overload hypothesis, see 6 and Randon, Liberty,
Charity and Politics, Pt 2.
10 This view is set out in Barber, Strong Democracy: Participatory Politics for a New Age and
Dryzek, Discursive Democracy: Politics, Policy and Political Science. For a British collection
in this tradition, see Hirst and Khilnani (eds), Reinventing Democracy.
11 Barber, Strong Democracy: Participatory Politics for a New Age seems particularly close to
this position as, at times, does Giddens, Beyond Left and Right: The Future of Radical
Politics, ch 4.
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12 Adams, Risk; Douglas, Risk and Blame: Essays in Cultural Theory; Douglas and
Wildavsky, Risk and Culture: An Essay on the Selection of Technological and Environmental
Dangers; and Rayner, Cultural theory and risk analysis.
13 Thompson et al, Cultural Theory.
14 For some empirical applications, see Coyle and Ellis (eds), Politics, Policy and Culture;
and Dake and Wildavsky, Theories of risk perception: who fears what and why?.
15 There is an extensive debate in cultural theory about the appropriate units of analysis.
Although some do, most individuals do not consistently exhibit the same cultural bias
in all settings in personal, working and public life. While some organisations and
institutional settings consistently evoke particular cultural biases in many individuals, it
seems strained to describe an institution as having a culture. The intellectual structure
which is a world view is not a culture, but may be a convenient social science shorthand
for some of the assumptions that appear in behaviours or expressions exhibiting certain
biases. Therefore, this paper will work at several levels.
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fatalism/despotism, isolates
systems are capricious
Systems deliver luck and misery
arbitrarily; property owners can
usually expect unfettered rights. My
participation would be pointless.
hierarchy/central community
systems are necessary
Systems must be maintained in an
orderly State and given balance and
direction by rational management,
allowing appropriate roles for all
positions and to maintain balance of
risk and opportunity. Participation
must be channelled.
individualism, libertarianism
regulated systems are superfluous
Benign and effective social systems
are the product of the natural and
spontaneous co-ordination of
individual decisions; constraining
those decisions with regulated social
systems will reduce supply and make
everyone worse off in the long run;
property rights should generally be
protected; exit can be substituted for
voice.
group
First, the theory predicts that fundamentally different perceptions of risk,
different styles of reasoning (world view or rationality), different
institutions and different social network structures will emerge in each
quadrant, and with them quite different styles of blame, accountability and
responsibility (grid), and solidarity and affiliation (group). In short, each
quadrant represents a way of life with its own consequences for constitutional
culture. While individuals can operate with different cultures in different
compartments of their lives, maintaining the boundaries will be costly.
Secondly, the theory predicts that the normal condition of inter-cultural
relations will be one of tension, because each will define itself in opposition to
the others.
Thirdly, the theory predicts that certain settlements (treaties, coalitions,
etc) between the those bearing each of the four different cultural biases, while
all unstable and shifting, will prove more durable than others. In general,
diagonal ties will prove more stable for longer periods, at least in favourable
conditions, than will vertical or horizontal ones. That between individualism
and hierarchy is a fairly common alliance, while that between enclavists or
egalitarians and isolates or fatalists is also not uncommon. The former is called
the power diagonal because individualists and hierarchists are both
84
16 On the importance of diagonal linkages, see Douglas, The choice between the gross and
the spiritual: some medical preferences. For a brief argument that the power diagonal
between individualism and hierarchy is the one on which British conservatism has
reinvented itself in each generation, see 6, Tories need a vision to stay on earth.
17 Thompson et al, Cultural Theory, pp 7578, offer a comprehensive listing of possible
routes along which people shift cultures.
18 Ibid, ch 5.
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the structures of decision making and constitutional order that affords the
opportunities for participation. Egalitarians tend to be critical, oppositionist
and present a culture of resistance. The risks of participation they perceive are
principally those of exclusion from the class of those able or invited to
participate, and of the failure of simple voting or other preference-aggregation
rules to take account of the intensity of preferences.
Hierarchists regard participation as but one stage in a larger policy
process, to be structured effectively in order to maximise the number of
relevant and useful arguments offered rather than, as egalitarians tends to
want, to maximise the number, or the decibel levels, of the voices. For
hierarchists, rules of participation, of discourse, and of respect for decision
making after the end of a formal period of participation, are key to the
usefulness and value of participation. They tend to imagine that low levels of
participation are sustainable. Almond and Verbas argument that a healthy
democracy is one in which extensive civic privatism balances moderate
activism is a good example of a hierarchist perspective. 19 The risks that
hierarchists perceive in connection with participation are those of gridlock in
decision making, hyper-activism making it impossible for decision making
systems to reach closure, and of over-representation of the interests of those
with very intense preferences, or democracy of the activist minorities.
Individualists regard participation as a distraction from focusing upon the
substance of the decisions to be taken. They tend to imagine that institutional
arrangements are sustainable in which people need and want few
opportunities for collective decision making, and therefore need but few
occasions for participation. In general, individualists prefer to substitute
institutions that redistribute decision making away from collective structures
toward individuals in competitive systems that sort effective from ineffective
decision making. One reason they can ally with hierarchists is that they share
some of the same perceptions of risk, although they share with egalitarians a
commitment to intense preferences, provided that giving free reign to those
preferences in an individuals own making of decisions does not interfere
with the making of decisions by others. Their principal risk perception about
participation is of the growth of the sphere of collective decision making.
Fatalists tend to regard participation as a sham, feeling that decisions have
usually been taken already long before opportunities for participation are
offered. They tend to imagine that whatever institutional arrangements for
participation are in place are sustainable, if only because all arrangements boil
down to the same capricious, ineffective decision making. Their negative
perceptions of participation either as useless or as sham enables some of
them to be drawn into temporary alliances with egalitarians.
From the perspective of this theory, then, the question of the cultural
conditions for increased participation becomes one of achieving the mix of
these cultural forms that will produce that increase. The theory suggests that
some subtle mix of institutional responses will have to be offered to each
cultures perception of the risks of participation.
One might initially imagine a kind of ring of tension in which each
culture held the others in sufficient check to the point that some system of
participation could persuade sufficient numbers at least of non-fatalists to
accept some compromise or trade off in order to participate. However, the
notion that the ring of tension might be stable is, of course, itself hierarchist,
and the stability of any particular ring of tension should not be exaggerated.
The first conclusion that we might reasonably draw from cultural theory is
that the chances of eradicating Hirschman cycles are very slim indeed. Any
feasible conception of sustainable participation must therefore be one in which
the conception of sustainability is neither one of an even level of participation
over time, nor one of an even distribution of participation across society. This
is not to say that cultural theory is conservative or pessimistic about
enhancing participation, only that it suggests that enhancements will take the
form of amplification of certain sections of the Hirschman cycle by means of
incremental shifts in the balance of cultures in the society.
Cultural theory also suggests that if the onset of disappointment in
participation is seen as the problem, then institutions for the management of
the expectations and perceptions of the risk of participation will be crucial.20
These institutions probably will be designed by hierarchists with the consent
of the other cultures and in particular of the egalitarians.
CULTURES OF CONSTITUTIONALISM
AND PARTICIPATION IN BRITAIN
We can, then, expect to identify different cultures of constitutionalism in
Britain, the differences following from whichever of the four cultural biases
set out in the grid-group classification inform a particular culture. In this
section, I will focus on some of the key, differing dimensions of these cultures
of constitutionalism.
Cultures are complex wholes, variously defined as whole ways of life,
shared life, shared meaning, systems for the understanding and governance of
20 Different cultural theorists will, of course, have different own cultural biases and
political predilections, as I do. However, the aim in using the theory in the present
context is to explore the conditions of dialogue between the cultures, not to justify, still
less to celebrate, any particular culture. This rather dispassionate goal will of course be
rejected by political romantics in each of the cultural biases, as will the cultural
compromises that it suggests are required.
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because we share the same nationality or the same local roots, or simply the
same gender, with them. Alternatively, if we believe someone to be reliable
on the basis of an eyeball-to-eyeball judgement, we are ascribing a
characteristic that is, for us, a reason for trust. In some cases, this may be a
special kind of reputation based trust, if we think that reputation in the
community of shared identity is valued. Alternatively, if we think that the
person or organisation may feel some sense of obligation to us because of that
shared identity or some other characteristic, the role of the community of
identity is more to do with moral scope of duty. Fourth, we might trust on the
basis of various institutional factors. Generic institutional factors include the
availability of legal redress in the event of default, while specific institutional
factors include the warranties and guarantees or other hostages that the
person or organisation may offer us.
We can classify tasks as follows. First, the minimal or merely prudential
level of trust arises when we believe the statements of intent toward us that a
person or organisation makes. Promises, threats and other indications of
intention to do or not do a certain thing can be believed, whether or not they
are welcome. Second, we may trust the person or organisation to carry out the
contract that we have with them, explicitly or implicitly by virtue of some
legal rule, and, presumably, to do so to the threshold level of competence
required explicitly or implicitly by the terms of the contract. Third, we may
trust the person or organisation to exercise goodwill. That is, we trust them to
put our interests first, and use their discretion in the agency relationship to
promote our interests. If the terms of the contract turn out not to be in our
interest, then one who exercises goodwill will set them aside. If the person or
organisation show goodwill towards our interests, they may do a little more
for us than the contract requires.
There is a fourth category of trust, which we might call absolute or moral
trust, in which we no longer trust the person to do anything in particular, but
trust them tout court. Organisations are not normally eligible for this category
of trust, which shades into esteem, and it will be ignored henceforth.
Cross-tabulating these categories yields the following matrix.
Figure 2: The dimensions of trust reasons and tasks
Tasks
Reasons
Minimal
(prudence)
Contract
and competence
Experience
Reputation
Characteristics
Institutions
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Goodwill
In many situations, if we trust at all, we will trust for not just one reason but
for a combination of reasons. Moreover, if we have reached the level of
goodwill, then analytically we have already achieved (and gone beyond)
contract trust, and likewise one cannot place contractual trust without first
placing minimal trust. Therefore, we should think of any particular trust
relationship as being represented not by occupying a cell in the matrix but
rather by an area of the matrix covered.
In general, movements (like ink spreading over blotting paper) to the right
of the matrix are movements in the direction of greater trust, while the
shrinking to the left of an area represents decreasing trust, perhaps the
consequence of a betrayal. It is not necessarily the case that after a person or
organisation has forfeited our goodwill that their trustworthiness person or
organisation will retreat all the way to the left hand border of the matrix, or
even back to prudential trust. They may still be trustworthy under contract,
provided we retain reasons to think that breach of contract would be so out of
character that even their failure to provide goodwill does not lead us to
imagine that they would so breach, or that breach would damage their valued
reputation, or that breach would run risks imposed by an institution such as
contract law.
My previous research39 has led me to frame the following key hypothesis.
People who place goodwill trust in a person or organisation will be more likely
to do so on the basis of experience than on the basis of institutional factors.
A culture of active, self-confident consumerism, in which individuals view
themselves as powerful purchasers in a market, choosing, questioning,
placing provisional trust in an organisation on the basis of evidence, expecting
transparency and openness, concrete assurances and some means of redress,
will be one in which experience-based reasons are more important than
institutional ones. There are two kinds of consumerism. In a consumerism of
exit, a provider that does not behave in a trustworthy fashion will be forsaken
in favour of the next who might. In a consumerism of voice, people remain
with the provider (perhaps because of the absence of any alternative), actively
complain, seek redress and make demands.
One way to apply all this to participation is to recognise that when we
engage in political participation, we engage in activities that generate
information about ourselves. Participation analytically involves us wanting to
provide information about our preferences. In some situations (such as signing
a petition) we may want ourselves as named individuals to be associated with
those preferences, while in others, we implicitly agree that a profile of different
pieces of information about us are linked together to provide a profile of our
preferences, behaviours or whatever, but not necessarily that a true identity be
attached at least for public purposes to such a record (as when we complete a
39 6, Trust, Social Theory and Public Policy; and 6 et al, Open Wide: Futures for Dentistry in 2010.
For an empirical overview using quantitative data analysis, see 6, with Lasky and
Fletcher, The Future of Privacy, Vol 2: Public Trust in the Use of Private Information.
93
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Reputation
based
Characteristic
based
Generic
institution
based
Specific
institution
based
Isolate/
Fatalism
Central
community/
Hierarchy
Enclave/
Egalitarianism
Individualism /
Libertarianism
Promoting Participation
97
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from clear that, for example, the levels of identification in Wales with the
assembly to be created there are anywhere near the levels that are found in
Scotland for the Parliament or even in London for the strategic authority. In
general, trust and esteem for politicians, the civil service, the monarchy, and
other principal constitutional actors continue to run at low levels, despite
initial upward surges around the time of the 1997 general election.
Perceptions of the risk of gridlock appear to be relatively low in Scotland,
although hierarchists and individualists continue to have qualms about the
effect of high levels of participation in Scotland on public expenditure.
The main behavioural indicators do not suggest any major, new,
consistent upward pattern in national levels of willingness to participate,
beyond the slow, secular upward drift reported in the major longitudinal
surveys. Turnout figures in local elections remain very low. Levels of social
activism are currently probably in a trough, but the absolute levels are not so
far above those of the last trough in the 1980s to be considered out of trend.
The most rapidly rising participation indicators are in respect of litigation and
other forms of juridified redress. Most studies do not suggest that the
proposed constitutional reforms will of themselves increase either the
willingness to be taxed in aggregate or, more crucially, that raising the ratio of
the costs of participation costs to the cost of public service generally would be
acceptable. Indeed, rising levels of litigation may actually have a negative
effect on this crucial variable. To date, neither educational nor media policy
have made great strides toward engaging in constitutional and civic education
in ways that they do not already.
Taken together, then, these factors suggest that the cultural conditions are
not in place in Britain today that would enable the changes to the anatomy of
the constitution to be accompanied by any significant, sustainable
enhancement in levels of participation. Nor are policies which would nurture
the necessary cultural changes being devised. The reasons for trust in
constitutional arrangements for participation which have been put forward in
left wing thinking, which are based on the idea of stakeholding, have
generally offered rather rigid and institutionally based reasons for trust which
are reminiscent of 1970s-style neo-corporatist structures for decision making
in firms.43
CONCLUSION
In this chapter, I have tried to set out a serviceable framework for analysis of
cultures of constitutionalism based on the grid-group cultural theory, and I
have applied that framework to the question of developing the cultural
43 6, Yesterdays tomorrows? Stakeholding and the political economy of the new British
centre-left.
98
44
45
46
47
Promoting Participation
49 A partial exception to this is Dryzek, The informal logic of institutional design. Using a
Q-sort empirical methodology, Dryzek distinguishes four discourses which bear quite
a strong relationship to the four cultural biases of cultural theory. He recognises the
need for such discourses to be brought into constructive relationships with one
another before progress can be made on his activist democratic agenda, but says little
about how this might be done or what the process of trust might look like.
50 Coleman, Foundations of Social Theory; Fukuyama, Trust: Prosperity and the Social Virtues;
Putnam, Tuning in, tuning out: the strange disappearance of social capital in America;
Putnam et al, Making Democracy Work: Civic Traditions in Modern Italy; and 6, Escaping
Poverty: From Safety Nets to Networks of Opportunity.
51 6, Governing by cultures; and 6, Holistic Government, ch 6.
100
CHAPTER 5
Stuart Weir
Was he free? was he happy? the questions are absurd
Had anything been wrong, we should certainly have heard.
WH Auden, The Unknown Citizen
Promoting Participation
lessons of the Scott report into the arms to Iraq affair, and the executive
response it evoked, was that civil servants hold MPs in contempt and are very
hostile to any realistic means of holding ministers accountable to Parliament.4
Lord Howes evidence to the Scott inquiry contained classic examples of
the disdain of the right for the clamour of the crowd. In Howes view, even
informed MPs and members of the public had to be kept in the dark in case
the emotional responses of uncomprehending or malicious commentators
distorted governments thought processes and put British business interests
abroad at risk. Government knew best. Senior bureaucrats supported Howes
view.5 Yet such disdain can flourish as strongly on the left. Richard Crossman,
a leading Labour party politician and thinker, once said that the patrician
ideas of Edmund Burke had quite as much influence on the left as on the right.
When the dockers marched on Parliament in support of Enoch Powells views
on immigration in 1968, Richard Crossman mused in his diary that Parliament
was a rock, sufficiently remote from popular control to ride out such
passions.6
Curiously, local authorities, which are deliberative bodies with formally
very open constitutions provided by statute, ape the conduct and manners of
Whitehall and Westminster. Thus, at the level at which people are most likely
to want to participate, they are confronted by remote institutions which for
the most part are not open to genuine participation by local people.
Even so, the openness of local authorities to electoral pressures was too
much for the Conservative governments of the 1980s. They created hierarchies
of national and local quangos executive and advisory non-departmental
public bodies (NDPBs) and local public spending bodies (LPSBs), to give them
their officially acceptable titles specifically to remove large areas of public
life and services from the public gaze. Significant local authority functions and
services, such as public housing, further and higher education, urban
planning, schools, etc, were successively removed from local authority
control.7 In Controlling Nuclear Weapons, Robert Dahl described how liberal
democracies created guardianship enclaves, in which decision making is
removed to groups of specialists or other chosen groups, acting largely in
secret under executive control and subject only to the most general constraints
of remote scrutiny by directly elected political figures. Britains quasigovernmental agencies are just such guardianship enclaves. Their
proliferation was justified by the government on the ground that participating
in their democratic control was less important to the public than making
4
5
6
7
Norton-Taylor et al, Knee Deep in Dishonour: the Scott Report and its Aftermath, chs 1415.
Scott Committee, Report of the Inquiry into the Export of Defence Equipment and Dual-use
Goods to Iraq and Related Prosecutions, Vol 1, paras D4, 5255.
Crossman, The Diaries of a Cabinet Minister, Vol 3, p 30.
Weir and Hall, Ego Trip; Weir and Hall, Behind Closed Doors; and Weir and Hall, The
Untouchables.
102
Such views are not uncommon among the 70,000 strong new magistracy
which (mostly) mans rather than womans the local quango State. The signs
are one year into the New Labour regime that, at both national and local
levels, these guardianship enclaves will survive largely unreformed, except
for a few palliative measures.9 (We still await concrete legislative proposals on
freedom of information, which could at least open up these enclaves to the
public gaze.)
In civil society, the trades unions probably are the public organisations
which have been most in touch with their members, but nevertheless they had
to have elective democracy forced on them by Mrs Thatcher. Not for nothing
were the likes of Jack Jones and Hugh Scanlon described as trade union
barons. Of course, the higher echelons of British industry, and other areas of
business and public life, are stuffed with their own barons, many of them,
indeed, decorated with imperial titles and medals. Even the most watered
down schemes for worker participation evoke outrage on the part of business
and industry. Britains bosses regarded the attempts of Tony Benn, as
Industry Secretary, to institute open planning agreements between firms and
their workers in the early 1970s as the stuff of revolution. So shaken were they
by Labour rule in that decade that Mrs Thatchers governments gave a high
priority to asserting the bosses right to rule. And, while European industry
accepts the European Unions social contract and similar schemes with
equanimity, among British industrialists such schemes are taken to spell the
end of civilisation as they know it. Even membership bodies do their utmost
8
9
Promoting Participation
to prevent their members having any real influence. The constitutions of the
Automobile Association, say, or the National Farmers Union, are designed to
entrench oligarchies. The National Trust was riven by struggle when its
hierarchy were horrified by members seeking to translate humanitarian and
environmental concerns into policy.
In brief, one could hardly say that in this country children are born into a
culture of popular participation or democratic practice. Nor are they even
educated in the ideas of democracy and citizenship, in the workings of the
institutions of the State, or in their rights and responsibilities under the law,
still less in the notion that they might themselves play a role in determining
what government, employers, the State, or other bodies do at any level of
society (though the Crick report may change this). In the 1960s, public
resentment of the planning process reached such heights that the then Labour
Government did attempt to introduce participation in planning, but that
enterprise very soon withered in the dry soil of local administration. Only
when local people choose to breathe life into the formalities which are still
gone through can participation in planning be said to exist.
Governments do, of course, consult. But official consultation is permeated
by the elite assumptions of the guardianship ethic and is quite unstructured
by any democratic ground rules. There is a formal process by which
government unloads masses of consultative papers every year onto interest
groups, trade associations, pressure groups, professional bodies, etc to
organised civil society in other words. The general public is not so much
excluded as included out. These formal processes are sometimes relatively
open, sometimes not. For the real external influence on government usually is
exerted through policy networks and communities of departmental officials
and the representatives of major businesses and interest groups who are
affected by a government departments decisions. Whitehall is largely an
uneven federation of government departments which actually make most
government policies and take most government decisions. They are governed
by informal rules and occasionally guidance from the Cabinet Office, but,
generally, create their own rules and processes. Through policy networks,
often revolving around advisory quangos, departmental officials and
organised interests negotiate public policy. It is here that the real external
influence on government is exerted, not through the impertinent Dolly
Drapers who frequent the demi-monde of national politics. The representatives
of recognised interests within these loops also play a far more significant role
in forming and making policy and legislation than elected MPs and their
committees. Often legislation in front of Parliament has been stitched up in
carefully calculated negotiations within policy networks which have then
been endorsed by cabinet committees. By the time such legislation reaches the
floor of the House or a standing committee, it simply cannot be unstitched.
Other measures may sail through largely unseen when broad and vague
104
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people tend also to lack experience of the skills and group work which are
required for successful participation.
Participation, then, tends to be the pastime of a highly active minority.
While most people vote and believe in the value of the vote only a small
minority was active across a wide range of activities; and that was even when
being active included people who may have carried out a single act only
once in five years. The range of activities extended from the 40% who had
signed a petition, and the 20% who had contacted a councillor at least once in
the past five years, to the 6% who had attended a protest meeting, the fewer
than 5% who had been involved in any form of party campaigning, and the
1% who had blocked a road in the same time period. (Protest generally is an
activity of the poor.)
It is possible to devise a list of 22 possible activists actions; to give a
weight to the level of participation in each ranging from never, only once,
now and then; and to aggregate these to produce a scale ranging from 0 for
doing nothing at all to 100 for being involved at a high level in them all. Parry
et al carried out this admittedly rather arbitrary exercise and found that the
average citizens score was about 6 out of a 100; three quarters of all
respondents scored 10 or less; and just over 5% scored between 20 and 100.
There is, therefore, a broad pattern of sporadic and sparse participation
among the population as a whole, and a high degree of activity among a very
small minority.
This minority of 650,000 complete activists, or 1.5% of British adults, are
drawn largely from the middle and upper classes. In the 1980s, the study
showed, about half had gone through university and belonged to the salariat,
and very nearly half belonged to the richest quarter of the population. But,
they also included working class people on low incomes, with one in six
belonging to the poorest quarter of the population. Nearly half of the complete
activists were women. Nearly half of them were active in organisations or
groups, with each such person having four or more such links. Indeed,
belonging seems to be closely associated with activism (as research in the US
has indicated). Parry et al identified strong correlations between activism and
possession of individual and group resources (as well as relatively high
confidence in ones own effectiveness). As well as these complete activists,
the study also categorises direct activists, contacting activists, collective
activists and party campaign activists.12
The assumption which is generally drawn from analysis of politics in
Britain, and such figures as these, is, as I have said above, that the British
people are deferential and passive. This fits in with the Schumpeterian view
of democracy which allocates to citizens a limited degree of participation and
in which politicians and political parties are the main agents of democracy.
Promoting Participation
massive protest and persuaded a government inspector to back their case for
retention and improvement. We swept round the area and loud-hailered an
invitation to come to the crypt of the local church to protest directly to
councillors and would-be councillors at an election meeting. Two or three
minutes before the meeting was due to start, only a desultory handful of
people had arrived. A Labour councillor, of the Schumpeterian persuasion,
consoled me with ill concealed pleasure: you cant get people like this out for
public meetings, he said. Within moments, nearly 300 people had poured into
the crypt and they gave him a roasting! Ten days later, he and his colleagues
were defeated at the polls. But, more significantly, a residents association was
born which, over the next seven years, reversed the councils policies; had
established action and conservation areas; won outright ownership of their
homes for the majority of leaseholders; blocked off traffic from rat runs
through the area; and set up a housing association, an advice centre, a local
nursery, and an adventure playground (reclaimed from a derelict site).
Nobody at that initial meeting had the confidence to stand for election to an
action committee, and so an open committee, which anyone could attend, was
set up instead. Attendance for the first year rarely fell below 20. Two sisters,
both OAPs, said they could not do much more than sell raffle tickets. They
ended up chairing committees, dealing with council members and officers,
and establishing dance evenings for the old folk. Respectable working class
men and women stole planks from a demolition site to fence off a neglected
and dangerous site. Tenants blocked a road until the council agreed to install a
pedestrian crossing. Fifty or so people, complete with (hired) mechanical
digger and tools, turned up to clear an area and erect play equipment for the
adventure playground.
At the CRO, we worked with a group of owner-occupiers who were being
denied compensation payments by Newham Council; council tenants on a
rundown Hackney estate seeking to force repairs upon their landlord, the
council; single parents on benefit campaigning for reforms in their treatment
by social security officials; furnished tenants of a rogue landlord in Islington
wanting security and repairs; council tenants organising a formal appeal
against high rent levels under the Housing Finance Act 1972; and so on.
In every case, people who had never been politically involved were
prepared to work together to save their neighbourhood, to enforce their
rights, to campaign for changes in the law or government policies. They did
not all win, and often did not expect to do so. But they wanted to try. They
are all examples of what I describe as the reactive character of the British
attitude towards participation. It would be foolish to argue that this reactive
element is ever-present. Some people and some communities are simply too
demoralised to have the self-belief, however tentative or fugitive it may be,
which encourages reactive activists to take their courage in both hands.
109
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110
behind a counter, etc. The use of a public rather than private telephone, choice
of words, or even speaking with an accent, is enough subtly and not so subtly
to put complainants at a disadvantage. June Jordan, the black American poet,
once wrote a moving essay on her students collective endeavour to gain
justice for a young black member of her writing class, and the agonising
choice they had to make to write their pleas for justice in standard (white)
language or black American. The point was that they knew that if they wrote
in their own language they could not possibly succeed.
What happens if complainants get a blandly evasive reply, or even no
reply at all? Or if they are denied the information they require? They will
generally be inexperienced in the alien world of politics, government or public
administration. Most lawyers and other specialists are costly to consult, and
there is no uniformly available advisory network in Britain, especially one
with legal expertise on tap, for people to get the guidance they may require to
act politically. Especially in urban areas, Citizens Advice Bureaux, if they
exist at all, are chronically under-funded and have to ration resources and
even opening hours. There are relatively few lawyers, surveyors and
professionals who are likely to be sympathetic or to specialise in ordinary
peoples problems, and access to them usually can be obtained only through
agencies or professional advisers. Clearly, tenants and residents associations,
trade unions and other bodies exist which will advise and assist their
communities or members, but unorganised communities and isolated
individuals will rarely be in contact with them. Moreover, there are certain
areas of public life in which communal action is, as it were, part of the warp
and weft of life. People are accustomed, for example, to organising a
campaign to get a pedestrian crossing, or to oppose the closure of a hospital.
or plans for a travellers site near their homes. But there are other significant
issues which rarely, if ever, spark off a participative response, such as the
effects of national health, employment or housing policies on local areas.
All these constraints are magnified in rundown inner urban areas or
peripheral housing estates, or for more isolated communities living in poverty
or neglect. The barriers here are even greater personal barriers, structural
barriers, official barriers. Transport facilities may be costly and inadequate,
major services and shopping facilities may be withdrawn, even the police may
be unable to maintain normal levels of security.
Most importantly, the determining political culture is one of the strong
central executive, aped by most other institutions of public life, which expects
no more of the ordinary citizen than consent and periodic legitimation at
election time. This culture barely knows how to encourage and incorporate
popular participation in its processes. Consultation generally is aimed not at
people but at organised interests. Thus, while people are far less deferential in
most aspects of their lives than they were two generations ago, and more
articulate and highly educated, nevertheless politics and public life remain
111
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112
CHAPTER 6
Lucy Gaster
THE ISSUES
Local government commitment to participation
In British local government, public participation and, more particularly,
consultation could be seen by the cynical as codewords, or passwords, for a
democratic legitimacy that is increasingly fragile. Electoral turnouts of 40%,
the lowest in the European Union,1 the accelerated centralisation of powers
since 1979, 2 and the rise of consumerism 3 are perceived by many to
challenge the very survival of local government as the local arm of democratic
government. Yet if local government could in reality transform itself into the
local arena for citizenship, connecting the triangle of individuals, community
and government within the locality through processes of participation,4 this
would give it a strong defence against attacks on its legitimacy in the future.
1
2
Promoting Participation
Bottom-up or top-down?
Processes of consultation and participation by consumers and citizens in the
affairs of local government have been gathering pace over the last decade and
a half. Some recent legislation and government guidance has required that
5
6
consultation take place over certain defined matters, largely in relation to the
environment or planning, and more recently in housing and social services.
How and with whom this is done is largely left to each authority to decide.
However, there is no general requirement to consult, far less to ensure any
kind of active participation. This means that even in authorities where public
participation is a corporate policy, such participation has been developed
locally, generally responding to local needs, political ideologies and
circumstances. In a very few authorities, participation is becoming more or
less a way of life. In most councils, an overall intention to become a
participative council is just beginning to take shape, now spurred on by the
governments democratic renewal and best value programmes. In some
other authorities, a culture of participation can be found in some sections or
departments, while others appear to be untouched. The unevenness of these
kinds of developments, especially at the implementation stage, is
undoubtedly the cause of some of the problems (and the cynicism)
experienced by the public and other key stakeholders.
The fact that participation has been largely a bottom-up7 process explains
the diversity and, to some extent, the confusion of purposes, methods and
even definitions of consultation and participation.8
The relationship between participative democracy and representative
democracy, in particular the role of elected councillors, has been even less
clearly thought through.
8
9
In using the term bottom-up, I mean to refer to the fact that the main impetus for
consultation and participation has emerged within local government and has not been
imposed by central government. At the local level, a bottom-up process would be one
that started either within the community or at the bottom of the bureaucratic hierarchy,
at the front line. Strongly devolved authorities may be able to build this kind of bottomup approach into their development of participation. However, top-down is the phrase
that usually comes to mind when analysing policy developments in local government,
and policies and processes to encourage participation are generally part of this pattern.
Gaster, Quality services in local government: a bottom-up approach.
Geddes, Extending Democratic Practice in Local Government.
115
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10
11
12
13
14 Gaster and Taylor, Learning from Consumers and Citizens. In this report, which examined
the practices of consultation and participation in seven local authorities in England and
Wales, Marilyn Taylor and I developed (p 17) the idea of a learning curve to
encapsulate the processes of change for both councils and community participants. This
idea was intended to underline the fact that grand goals are not to be achieved
overnight and that the way to develop confidence (on both sides) is to achieve some
tangible results which are small but important.
15 Arnstein, A ladder of participation in the USA. This ladder could be thought of as a
spectrum if this helps to remove the possibly judgmental notion that the aspiration
should always be towards some form of power sharing.
16 Gaster and Taylor, Learning from Consumers and Citizens, p 14.
117
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leaves plenty of room for everyone to ask why they should bother to get
involved. Conversely, to be too clear about the intended outcome could look
like manipulation (the bottom end of Arnsteins ladder), leaving no space for
the participants to mould the process and fulfil their own agendas.
In the middle ground, some broad local government objectives can be
identified, even if they are not always explicit at the local level. They fall into
four groups:
(1) legitimacy, accountability and effectiveness: to try to reduce the remoteness of
local government from everyday life;
(2) a consumer rather than a producer orientation: to recognise and respond to the
(procedural) rights of people as consumers of services (though not
necessarily to increase choice);
(3) the public purposes of local government: to draw in people in their role as
citizens, with civil and social (substantive) rights beyond those of the
immediate consumer;
(4) extend democracy: to enable (empower) residents to take greater control
over their own lives.
119
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Promoting Participation
Levels of participation
It is possible to distinguish three distinct levels of participation on the basis of
the discussion so far.
(1) The micro level. Individuals, families and user and pressure groups can
be involved at a practical level in the day to day services which they need
and/or receive. This level would normally be in the role of consumers,
carers, customers, clients, where procedural rights to be informed and to
complain are supplemented by the right to discuss options, make choices
and to challenge professional opinion (co-production).
(2) The meso level. Services and new initiatives (for example, social,
economic and physical regeneration) need to be planned, shaped and
resourced. Local people can become involved in these processes both as
consumers (past and present) and as citizens (who may or may not be
consumers in the future). While service planning of some sort (generally
incremental) has existed in the past, the advent of the contract culture and
the enabling local authority has highlighted the need both for local
authorities to be more explicit about what they are aiming to do and for
local people to be involved in the planning process. It is local peoples
needs and priorities that will need to be met. The expert knowledge on
which councils formerly relied must now be supplemented by the
experiential knowledge of people who have been at the receiving end
and who in some cases for example, regarding disability have
developed alternative theories and approaches that the professionals now
need to take on board.24 The challenge here may to be to entrenched
interests, in departments and services and at the political level, among
committees and chairs of committees.
(3) The macro level. It is increasingly important for local government to
move from the we know best attitudes that have until now dictated the
23 Stewart and Hall, Citizens Juries.
24 Barnes, Care, Community and Citizens points out that the power of the professional is
extremely hard to challenge, particularly by consumers of community care who are
necessarily at their most vulnerable. The important point and this is where councillors
and managers can come in is to recognise and legitimate consumers and user groups
as competent so that they are not marginalised on grounds of ignorance by the
professionals (a problem also experienced by councillors themselves). Collective action
through user groups has been one powerful way of getting professionals to listen to,
understand and act on some of the unwelcome messages about their services that they
would in the past have tended to ignore.
122
Summary of issues
Of all the agencies of government affecting peoples lives, local government is
the only one that operates at the local level (at the neighbourhood level in
25 The citizen question is an approach being developed in the Nordic countries, who are
devoting a good deal of effort to considering the role of the front line in relation to the
public. Various forms of one-stop shops are emerging from the debates. Experiments
in these countries aim to develop a generic, holistic view of service. Front-line staff are
being trained to respond to needs as stated by the citizen, not as defined by the service.
As with similar decentralised initiatives in the UK, the main difficulty is to get the
whole organisation thinking in the same way. This results in the front-line feeling
unsupported by the back-line and the leaves the public unclear about what, if
anything, has really changed. See Gaster and Rutquist, Changing the frontline to meet
citizen needs, Local Government Studies (forthcoming 1999).
26 Gaster, The citizen question: re-thinking service design.
123
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Promoting Participation
not part of the research, but is an action recommended by it). The tables
summarise the views of carers and of front-line staff about the technical
aspects of community care assessment. They show areas of overlap, but also
areas of difference or uncertainty, particularly around the basic definition of
need (equated largely in the social workers minds with risk), around
priority criteria and charging systems, and about the fear of litigation if things
go wrong. The expert perspective of the professional, and the experiential
knowledge of the carer are clearly exposed.
Table 1: Carers views
Information Knowledge and Options
professional
and choice
expertise
Co-ordination
Communication Practical
help
The
charging
system
Accurate
and
consistent
information
They should
do their
homework:
be informed
about the
users condition
Full picture
of whats
available
helps make
decisions
Agencies
should tie up
with each
other not to
have to keep
saying the
same thing
Forms with
boxes
horrible. Do
they just want
to fit you into
a category?
Put you in
in touch
with
voluntary
organisations
The system
should be
businesslike and
efficient
Explain why
a formal
social
services
assessment
is needed
They need to be
very thorough,
check what
you want
They should
be able to
suggest
different
solutions
Social Services
should do the
overall
co-ordination
Good to see
them writing
things down
you worry they
might forget
Reduce the
number of
forms to be
filled in (eg,
for respite
care)
Payment
should not
be exacted
before the
charges are
known
Clarify the
status of
written
information
(advice,
guidance,
key data on
which
decisions
will be
based, etc)
Ensure
there is real
choice,
rather than
being
pressured
to go along
with less
good
solutions
Clarify which
agency has
responsibility
for what
(especially as
between health
and social
services)
Financial
advice
(Welfare
rights are
very good)
Create
confidence that
an appropriate
solution is
being suggested
(you have to be
100% sure )
Use case
conferences to
co-ordinate
assessment
process
Discuss the
assessment before
it is signed (final
version can come
by post)
Anticipate
situations, do
assessments
earlier and
faster, not at
the last
minute
Efficient
co-ordination
of complex
processes it
should be
smooth, not
bitty and
disorganised
Is everything a
user says gospel?
How are user,
carer, sibling
views balanced?
126
The user or
carer
should
have the
right (or be
aware of
the right)
to control
the budget
Co-ordination
Communication Practical
help
The
charging
system
Gather
information
Respond within
guideline times
for each priority
category
Act as care
manager to
co-ordinate
all aspects and
take overall
responsibility
Introduce
charging
issue early
in
assessment
process
Make sure
everyone has
the same
information
Sufficient
Clarify
accurate
options
information at
screening and
initial assessment
stage
Know what
other people
do (how much
do they know
about it?)
Separate out
client and carer
views; do
separate
assessment
with carer if
necessary
Accompany
charging
information
with
welfare
rights
information
Be clear
who the
information
is for and
how it will
be used
Assess risk on
basis of
adequate data
Give
accurate
information
about the
charging
system
Provide
opportunity
to reflect
on and
challenge
the
assessment
Identify a
range of
providers,
both inhouse and
external
Register
unmet needs
Give
information
about the
assessment
process,
other
services, etc
Build
relationships
with users,
carers, other
professionals
Note any
disagreement
over the
assessment, be
prepared to
defend
professional
opinion
127
Be willing
to take
immediate
action if
necessary
Promoting Participation
129
Promoting Participation
Empowering communities
A very different form and level of participation was meanwhile being
developed in Walsall. This contentious borough had won an SRB bid which
was based on a decentralised neighbourhood model with which the former
leader (expelled from the Labour Party and from his position as leader just as
the bid was won) was closely and personally identified. It was a radical vision,
as the formal bid made clear. The main focus of this bid was on empowering
residents in targeted local communities, enabling them to exercise real power
over resources, to tackle the physical and social problems of their areas and to
equip them with the motivation, skills and qualifications to obtain
employment in and beyond the borough.31
In the first year, consultants were engaged to develop the first stage of
involving communities in the seven targeted neighbourhoods, with the
intention of achieving local elections to neighbourhood committees by the end
of the first year (of a seven year programme). As with the Local Service
Partnerships, the research found considerable variation in the understandings
of, perspectives on and expectations of the very wide range of actors
interviewed. The process included a series of participative two day events in
each neighbourhood, culminating in a borough-wide event that brought all
the nearly 200 main players into the room together. The links between these
high profile events and more on-going processes of involvement and internal
cultural change had yet to be worked through, and there was considerable
anxiety both about the lack of active involvement of most councillors and
about the withdrawal of several of the key people who had kept the process
going. However, in November 1997, some months after our evaluation of the
first year of SRB was completed, neighbourhood elections to local committees
were successfully held. Within the long term process of change, the immediate
targets of wider citizen involvement were beginning to be met.
We identified several problems which would have to be resolved in the
future, some of them relating to the fact that this approach was being carried
out under the auspices of a government regeneration programme which had
its own rules and timetable. The ability of other than local government
agencies actively to engage with the process (they did try) was another
concern.
Another important issue, nicely illustrating the citizen question
introduced above, was the need to make links between this programme and
the everyday services. The issues, which were not neatly confined to the SRB
agenda and had not been consciously anticipated, raised the question of how
each partner agency should respond in terms of its day to day services if the
raised expectations of local people were not be dashed once more. In similar
vein, the question was beginning to be asked about why other areas of the
borough were not engaged in a similar exercise why were some residents to
be empowered and others not?
Despite these difficulties, we tried to identify some indicators of future
success the achievement of the declared objectives even though they did
(in theory) only apply to the seven SRB neighbourhood and to regeneration
issues. Success would depend, we thought, on the following problems being
solved:
how the initiative would be sustained and developed, given a problem of
clear leadership and the uncertainty about political intentions and support;
how the initiative would be linked more firmly and explicitly to
mainstream services, and how this would affect the probable role and
power of neighbourhood committees;
how appropriate skills and cultures could be developed and nurtured
within all the partner agencies, keeping in step with the democratic
developments in the neighbourhoods and enabling agencies to respond in
a credible and practical way: responding to the communitys agenda;
how the imperatives of hard outputs required by the SRB programme
could be matched and linked with the long term, dynamic and less
tangible development of community empowerment.
We suggested the following indicators which would show whether
empowerment was taking place:
(1) continued existence of neighbourhood groups and forums;
(2) ability of the groups to adjust to new circumstances, draw in new people,
ensure inclusion of excluded groups;
(3) accountability of neighbourhood committees, etc: to whom they would be
formally accountable, to whom they would feel accountable, methods of
demonstrating accountability, for example, to local residents (reporting
back, newsletters, elections, open meetings, etc);
(4) accountability of agencies and service providers: to whom they would be
formally accountable, to whom they would feel accountable, methods of
demonstrating accountability, for example, to local residents (attending
local meetings, reporting back, responding to local priorities, re-shaping
services, working across boundaries, etc);
(5) how decisions are taken for example, no decision taken unless
neighbourhoods have been consulted and have expressed their views;
(6) devolved responsibility for example, for decision making; managing
budgets; managing projects; commissioning and purchasing services;
making service level agreements; appointing staff, developing contract
specifications and monitoring performance;
131
Promoting Participation
(7) existence of explicit values, objectives and expectations which inform the
process and the direction it takes in the future (and the acknowledgment
that these will be different for different stakeholders).
132
Unsponsored/spontaneous participation
(initiated by local people and
recognised/supported by the council)
Consumerist responding to
procedural rights
Listening
Acting
Giving voice
Creating choice
Creating structures
Removing barriers
Community development
Organisational development
The third set of problems relates to the question of who is involved who are
the participants and stakeholders and can they (should they?) be controlled if
they get out of hand (that is, if they, especially members of the public, ask
133
Promoting Participation
unexpected question, challenge policies and practice, use the media, etc)?
Whose voice is heard and why?
Table 5: Power and voice (levels of control)
Consumer focus
Citizen focus
Expert knowledge
Experiential knowledge
Councillor-led
Officer-led
Single method
Multiple methods
Finally, which aspects of local government and local governance are the focus
of attention? Is the agenda open or closed as to which levels of operation
strategic, operational or day to day the public is being encouraged (allowed)
to become involved in? It is often argued either that strategic matters are the
prerogative of elected councillors, or that local people do not have enough
knowledge to become engaged in strategic thinking and decision making, or
that it is the officers who are paid to make decisions, not local people. Not
everyone does want the responsibility and blame for taking difficult
decisions, especially around the allocation, rationing and often cutting of
resources. However, the issue is whether there is clarity and agreement about
the framework and ground rules, not about what is or is not possible.
Participation can and does take place at all the levels just described. It would
up to local people to consider what is most appropriate and acceptable to
them.
Table 6: Focus of participation
Local government
Local governance
Collective action
Operational level
Strategic level
Corporate focus
134
CHAPTER 7
Ian Ward1
INTRODUCTION
In this chapter I want to discuss the possibility of developing alternative forms
of participatory governance and democracy in the European Union. At the
heart of this discussion will be the belief that democracy is an immediately
constitutional issue. In sections two and three of the chapter, I will examine
the nature and extent of the presently perceived constitutional crisis in the
Union. In the following two sections, I will then introduce certain alternative
theories of democracy which, it will be suggested, might be appropriate for
any projected constitutional renewal. In the final two sections, I will conclude
by suggesting how far such theories might enjoy specific application in the
areas of European social and industrial relations law.
1
2
I should like to thank Clare McGlynn for comments made on an earlier draft of this
article.
Derrida, The Other Heading: Reflections on Todays Europe.
137
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it will.3 In turn, Goran Therborn suggests that the European idea has been
captured by an interest group of technocrats and industrialists whose
pervasive ambitions will ultimately lead to the break up of the new political
order.4
Even the more committed and ardent supporters of the European idea
make increasingly urgent calls for action in order to deal with the potentially
damaging effect of the wide scale disillusion, and sheer apathy, which
pervades so much of the Unions citizenry.5 As long ago as 1982, Martin Slater
emphasised the extent to which the Community is commonly perceived to be
run by elites for elites.6 More than a decade later, Jurgen Habermas suggests
that the fundamental problem of identity and affinity in the Union remains.
Ordinary people simply do not feel part of the European idea, or its reality.
Taking a similar line, Joseph Weiler has consistently identified a problem of
legitimacy in the new Europe, at the root of which is the question of
democracy. Europe is not, and most importantly appears not to be,
accountable to its citizens.7 According to Weiler, the crisis that presently
afflicts Europe is one of constitutional and legal legitimacy, precisely because
what distinguishes the Community is its constitutional foundation. Moreover,
resolution of the crisis is pressing because the democratic shortcomings of
Europe are so colossal. In his most recent writings, Weiler has suggested that
constitutional renewal in Europe will require a more imaginative approach to
the idea of democracy, one which will acknowledge the reality of co-existing
multiple demoi. Contemporary Europe, he suggests, recognises transnational
affinities to shared values, which are themselves the product of reflective,
deliberative rational choice, without pretending to have any comprehensive
theoretical foundation for that recognition. Such shared values can only be
democratic values.8 In another recent article, Weiler has again advocated
mechanisms for more direct democracy, including legislative ballots and the
formation of European public spaces.9 Such a jurisprudence is immediately
resonant of the alternative ideas of participatory democracy associated with
John Rawls and Jurgen Habermas, whose work will be considered shortly.
3
4
5
6
7
8
9
Promoting Participation
13
14
15
16
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Promoting Participation
community life that bring rich and poor together in public places and
pursuits.29
At the heart of the communitarian critique is the suggestion that the
constitutional ethic of the 1776 has been lost, defeated by the countervailing
demands of liberal legalism. What Amitai Etzioni famously refers to as the
spirit of community must be recovered by reinvesting the original ambitions
of the American constitution. Resurrecting the spirit of 1776 will entail
reforming society in line with Alexis de Tocquevilles description of a polity of
associational groups. Etzioni refers to such communities as social webs of
people who know one another as persons and have a moral voice. This is a
matter of civic and collective responsibility.30
However, it is not just a matter of listening for such a voice. More
importantly, there is a need to reinvent the institutions of a strong
democracy. According to Sandel, the republican tradition of 1776 represents
an alternative view of citizenship and democracy in that it decentralised
political power to all sorts of localised institutions, to trade unions, reform
movements and local government, as well as families and neighbourhoods. It
is ultimately a matter of facilitating self-government. A more participatory
conception of democracy will promote a sense of civic responsibility which
has been lost during the last century and the rise of liberal constitutionalism.
The inadequacies of such an idea of democracy has been underlined, Sandel
suggests, by the experience of the market. The liberal constitution was written
in order to facilitate the free market, at the cost of the civic community. But
what has been lost is any real sense of participation or belonging.31 The need
to recover a sense of community, by encouraging a more active participatory
citizenry, is then all the more pressing in a modern world of globalisation and
increasing competition.32 As Francis Fukuyama has suggested, there is a need
to recover, not merely a sense of community, but a sense of trust.
Fukuyamas thesis has two premises. The first, following JA Schumpeter, is
that capitalism is an exercise in creative destruction, which can only be
countered by social solidarity. The second is that law, at least liberal
legalism, is not a sufficient regulator of the political economy. Competition
within any society must be regulated in order to restore the trust which any
community needs in order to be a community. Such regulation can be legal,
but is never only legal. Again, echoing de Tocqueville, he emphasises that the
civic art of association is also an important economic virtue. As JK Galbraith
has also stressed with increasing urgency, a communitys economy is
constituted as much by social as by economic capital.33 Thus, a community
29
30
31
32
33
characterised by trust will be more efficient that one solely defined by law.
Fukuyama refers to the idea of spontaneous sociability as a form of
inherently fluid politics within which each citizen aligns with multiple
identities and affinities. In political terms, such sociability demands a
democratisation of the economic process. Trust connotes responsibility and
the devolution of power, most obviously to the workplace. The idea of
solidarity, the essence of a community or good society, is, at once,
economic, social and political.34
Despite the common description of the European idea as one of
community, there has been precious little discussion of communitarian ideas
in European studies. Weiler rejects the communitarian alternative. An
essentially American political theory, he suggests, would have no application
in Europe.35 To a certain extent, it is true that communitarianism, at least in its
more recent guises, has been consciously shaped in the cause of redefining
American public law. However, as Alasdair MacIntyre most obviously
observes, the ideas of community enjoy a far more distant historical genesis.
The origins of communitarianism lie in Europe, in the classical form of
Athenian democracy and then again in the revised continental republicanism
of Machiavelli, Harrington and a whole series of like-minded early modern
political theorists. 36 Sandel, indeed, concludes his recent Democracys
Discontent by recalling Montesquieus injunction, taken from Aristotle, that
good citizens are made, not found.37 The idea of community long precedes
1776 and is rooted in European political morality. No one appreciated this fact
more than Hannah Arendt. According to Arendt, the politics of solidarity is
premised on the critique of liberal legalism, and its preclusion of participatory
government. Such a preclusion, she suggested, is the precondition, not only of
totalitarianism, but of all forms of regulatory government. If democracy is
deficient, it is because too few people care. Arendt, like Sandel, echoed
Aristotle. Politics is created, not discovered. A democratic politics, in turn, is
one which concentrates on facilitating participation by defining and
preserving public spaces as a locus for political activity and
communication.38
Furthermore, the desire to fashion an alternative to the liberal idea of
constitutional democracy is not restricted to communitarian models of
participatory democracy. Radical democracy also lies at the heart of the
critical legal ambition. In a seminal article, cited time and again by critical
legal scholars, Hanna Pitkin and Sara Shumer identified democracy as the
cutting edge of radical politics. The basic idea, they suggested, is simple,
34
35
36
37
38
Promoting Participation
that people can and should govern themselves. Liberal politics secures elites,
radical politics seeks to relocate power with ordinary people. The political
vision acclaimed by de Tocqueville must be retrieved from the
communitarians and reconstructed as a genuinely critical and radical politics.
Democracy is the only means by which there can be radical social change.
Accordingly, it should be the only concern of the radical legal scholar.39 Of
course, a politics that is founded on the radical decentralisation and dispersal
of power enjoys a particular popularity amongst those more inclined towards
a post-modern jurisprudence. According to Zygmunt Bauman, post-modern
politics is marked by a view of the human world as irreducibly and
irrevocably pluralistic, split into a multiple of sovereign units and sites of
authority, with no horizontal or vertical order.40
In turn, participatory politics is not the preserve of post-modern
jurisprudence. In his more recent writings, Rawls has recognised the fact of
reasonable pluralism. The political individual lives in a community, and so
the key political ideas are described in terms of reciprocity between free and
equal citizens in a well-ordered society. Such a politics is one described by an
overlapping consensus and constituted by a process of political
constructivism.41 RM Unger, though far more readily associated with the
critical legal project, describes a radical liberal politics which is strikingly
similar to Rawlss. According to Unger, liberal legalism has preferred the
conditions for a pervasive uniformity of desires and preconceptions over
those of communal solidarity of extensive, coherent, concrete and intense
moral communion. A radical liberalism, he counters, can only evolve from a
reconstruction of group pluralism as the creative constituent of democratic
politics. In Law in Modern Society, and more recently, in Politics, Unger has
advocated a radical decentralisation of power as a precondition for restoring a
kernel of solidarity. Such a kernel is a concern with another as a person
rather than just as a bearer of formally equal rights and duties.42 Moreover,
in his Critical Legal Studies, Unger laid the responsibility for fashioning an
alternative radical form of democracy with lawyers. Rethinking rights so as to
accommodate the demands of modern society will necessitate various
associated substantive rights, of access to markets and to political processes, as
well as the more familiar formal rights against other private individuals.43
39 Pitkin and Shumer, On participation, pp 4354.
40 Bauman, Intimations of Postmodernity, p 35. Such an approach has been taken by Drucilla
Cornell, who uses the insight in order to present an alternative approach to critical legal
feminism. According to Cornell, there is no essential woman. Women are defined by
multiple sites of identity. So, rather than concentration on political equality for a
mythical model woman, radical feminists must seek political equality for all, founded
on an appreciation that everyone is different. At the root of Cornells idea of radical
difference is a return to the essential Kantian idea of respect for each individual as an
end rather than as a means. Cornell, The Philosophy of the Limit.
41 Rawls, Political Liberalism.
42 Unger, Law in Modern Society, pp 6769, 12728, 14243, 206.
43 Unger, The Critical Legal Studies Movement, pp 2236, 41, 93103.
146
HABERMAS ON EUROPE
In his recent work, Jurgen Habermas has attempted to describe a radical
theory of participatory democracy, in large part to address the crises of
legitimacy which he perceives to be pervasive throughout not just Europe but
the western world. Whilst also refining the ideas of such as Rawls and Unger,
44
45
46
47
Kennedy, Sexy Dressing etc: Essays on the Power and Politics of Cultural Identity, pp 83125.
Klare, Law-making as praxis, pp 12335.
It is an argument also made by Kennedy, ibid, pp 11215.
Klare, Labour law as ideology: toward a new historiography of collective bargaining
law, pp 45082; Klare, The public/private distinction in labor law, pp 1358422 and
Klare, The quest for industrial democracy and the struggle against racism: perspectives
from labor law and civil rights law, pp 157200.
147
Promoting Participation
48 Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and
Democracy, pp 14647. For a commentary, see Rehg, Introduction to the same work.
49 For a similar thesis, see Giddens, Modernity and Self-Identity: Self and Society in the Late
Modern Age, pp 29, 3765, 10911.
50 Ibid, Habermas, pp 79, 321.
51 Ibid, Habermas, pp 1416, 8081, 91, 121, 28788.
148
52 Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and
Democracy, pp 186, 29899, 36091.
53 Ibid, p xxxix
54 There is, of course, much truth in this particular observation. Wealth polarisation is the
most immediate practical threat to the Union. Within its geographical boundaries, the
Union recognises that 58 million of its residents are poor. Three million Europeans are
homeless. The average rate of accelerating unemployment in the Union has risen year
by year for over a decade. Regional inequalities continue to widen. Whilst 14 of the
Union Level II regions have GDP per capita above 125% of the average, 158 are less than
75% of average. Deficits are concentrated acutely along the Mediterranean seaboard.
Hadjimichalis and Sadler, Open questions: piecing together the new European mosaic,
p 238.
55 Ibid, Habermas, pp 42831.
149
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56 Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and
Democracy, p 445. Cf, Habermas, Citizenship and national identity: some reflections on
the future of Europe, pp 2, 89; and Habermas, The European nation state: its
achievements and its limitations. on the past and future of sovereignty and citizenship,
pp 12537.
150
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59 Most obviously in that social policy initiatives pursuant to the Agreement could be
approved by qualified majority voting, whilst those emanating from Treaty articles
continued to require unanimity. This particular anomaly has been alleviated by the
willingess of the new Labour government to subscribe to opt in to the Agreement.
60 Szyszczak, Social policy: a happy ending or a reworking of the fairy tale?, p 313.
61 Teague, The European Community: The Social Dimension.
62 Grahl and Teague, Economic citizenship in the new Europe, pp 39596.
152
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firm distinction between the public sphere of Community competence and the
private sphere of industrial relations remains at the heart of Community
industrial relations policy.
In the absence of constitutionalised industrial democracy, we must look to
the private sphere of directives and the extent of their implementation. Here,
of course, the sense of voluntarism is all the greater. Directives uniformly
provide rights for consultation, but nothing more. Thus, even when the Court
of Justice finds that a directive on collective redundancies has been
inadequately implemented, as in the 1994 UK case, the indictment is limited
purely to a failure to provide meaningful procedures for consultation.69 The
same voluntarism founds Directive 94/45 for the establishment of European
Works Councils. The idea of works councils was mooted as early as the 1970s,
but like so many social policy initiatives of that period never reached
fruition.70 The realisation of the 1994 directive carried a certain symbolic
importance, but once again, in reality it seemed to suggest the necessity of
compromising workers rights at least as much as effecting them. Employees
still only have the right to be consulted. Of course, the right to be consulted
must not be simply dismissed, but it is important to emphasise its limitations
in terms of participatory democracy in the workplace. It is also, as Clare
McGlynn has observed, important to note that the directive is further evidence
of a Community industrial relations policy being pursued through the private
sphere, and accordingly realised only in bits and pieces. It may be a step
forward for the idea of participatory workplace democracy, but it is not a
particular large or a particularly convincing one. The onus remains firmly on
voluntary agreements, flexibility and the overriding principle of autonomy.
Industrial relations, in the immediate political sense, remain securely within
the mythical realm of private law. Furthermore, in practical terms, it only
applies to companies that employ 1,000 workers or more, and do so in least
two Member States, each of which must include at least 150 of that workforce.
It is a Community measure with no application to purely national
companies. 71 For millions of workers, the vast majority, it is entirely
irrelevant. For those it effects, the rights it provides fall a long way short of
those envisaged in a genuine participatory democracy.
The commitment at the Amsterdam IGC to a deregulated flexible labour
market does not suggest that this situation will change. Industrial relations
law will remain within its fictional private sphere, even if the Community at a
public level is prepared to chatter about the virtues of greater industrial
69 Case C-3823/92 [1994] ECR I-2435. In this case, the Court handed down a damning
indictment of the UK governments failure to implement Directive 75/129 on collective
redundancies. More particularly, it castigated the governments failure to provide an
adequate system for the designation of employee representatives.
70 Gold and Hall, Statutory works councils: the final countdown?, pp 17779.
71 McGlynn, European works councils: towards industrial democracy?, p 78.
155
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democracy. As Martin Rhodes has concluded, the most likely scenario is for
an uneven and spasmodic emergence of an ad hoc institutionalised system of
European labour relations, one in which employers maintain the upper
hand.72 Of course, the rhetoric continues, the vague arguments, the grand
gestures. On 4 June , the Commission issued another Plan for a regulation on
worker consultation. With something of an understatement the bulletin opens
by acknowledging that the relationship between management and labour
with to regard to rights of information on strategic and economic decisions is
not always effectively guaranteed. Workers representatives, it continues,
tend to be involved rather too late in any decision making, if at all.
Measures to address this would be a good thing. Furthermore, the
Commission continues, legislation in workers rights is rather fragmented,
located variously in the Works Councils directive, together with other
directives on mass redundancies (95/56) and transfer of undertakings
(77/187). Consolidation would also be a good thing. Of course, the regulation
will only come into existence following lengthy negotiation with employers
and trades unions. Moreover, the Commission thinks that such a regulation
will only be workable if all parties agree on a voluntary basis to its gradual
implementation. So if no agreement is reached, the Commission will be
reluctant to draft any sort of regulation or even directive itself. The bulletin
concludes by noting that preliminary consultation on the matter has
suggested that, whilst trade union reaction has been quite positive, that of
employers has tended to express misgivings about such an initiative.
Moreover, rather than merely expressing these misgivings, employers have
thrown a constitutional principle back at the Commission, subsidiarity. A
Community regulation on workers consultation would be against the
pervasive spirit of subsidiarity. The European constitution is cited as the
primary authority for resisting any further advance towards participatory
governance in the workplace.73 It would be unwise for anyone to hold their
breath waiting for genuine radical participatory democracy in tomorrows
Europe.
72 Rhodes, The future of the social dimension: labour market regulation in post-1992
Europe, pp 4344.
73 Europe Information Service, Worker consultation: commission plan for national
framework regulation.
156
CHAPTER 8
Kevin Featherstone
INTRODUCTION
Few can doubt the growing importance of the European Union (EU) in the
lives of the peoples of its Member States, or even to the world beyond. The
current EU agenda comprises moves to a single currency and closer foreign
policy co-operation, including defence. Existing EU policies in regional
development and agricultural aid are highly important to those directly
affected. Moreover, the increased openness of the European market is revising
the regulatory powers of national governments over their domestic
economies. New States seek to enter the EU and Third World countries have
established important relations with it. The importance of the EU naturally
provokes questions of how it affects democratic systems, accountability and
participation. The viability of democracy at the national level depends on a
resolution of the Member Nations relationships with the rest of the EU.
Participation at home is of less use, the more power is exercised at the EU
level.
Participation in a polity presumes citizenship. But what defines
citizenship? For four decades, the architects of the European integration
process shied away from raising this question in relation to their own bold
endeavours. Neither the Treaty of Paris (1951) nor the Treaty of Rome (1957)
made reference to the notion of citizenship, nor did the Single European Act
negotiated in 1985. The Treaty on European Union (TEU) signed at Maastricht
in December 1991, however, created a new European citizenship (Art 8), and
this provoked a backlash from several quarters.
Citizenship is normally granted by states, and the rules applied by States
vary considerably. The EU is not a State, so the innovation of the TEU raises
difficult questions about how the EU relates to its Member States. What kind
of political entity is the EU? The answer to this question has implications for
how an EU nationals democratic rights (accountability, participation, etc) are
to be understood. It also contributes to an evaluation of whether the EU helps
or hinders the exercise of these rights.
In the ratification process for the TEU, many competing positions were
taken on these matters. One of the most important and wide ranging
157
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Herdegen, Maastricht and the German constitutional court: constitutional restraints for
an ever closer union; and Weiler, The State ber Alles: Demos, Telos and the German
Maastricht Decision.
Ibid, Weiler, pp 1415.
Ibid, Weiler, p 48.
158
developments at both the national and the European level appears logical, and
perhaps attractive.
Indeed, an overly rigid definition of citizenship poses a range of political
problems, not only in relation to the EU, but also in the context of the multiculturalism of existing Nation States in both East and West Europe. From the
Baltic States to the Basque country, or from Northern Ireland to Bosnia, it is
more and more apparent that peace and stability is better founded on notions
of multiple citizenship, moving beyond a simple equation of people-Statecitizenship (Volk-Staat-Staatsangehoeriger). The reassertion of minority
identities in central and east Europe is more readily accommodated by such
an acceptance. History is relevant here. Leaders of the minorities movements
in inter-war Europe, for example, recognised that cultural identity was a
multi-faceted phenomenon, transcending existing Nation States. This might
be extended further: enabling political rights to follow multiple identities.4
5
6
Paul Schiemann, a Baltic German, argued, eg, that a citizen has a dual duty: to the State
in which one lived and to a cultural identity which might extend beyond an existing
Nation State. Discussions of this kind were evident at the Nationalities Congress, a
sequence of meetings held in the late 1920s and 1930s. I am grateful to my colleague,
John Hiden, for having brought these points to my attention.
Quoted in Newman, Democracy, Sovereignty and the European Union, p 147.
Meehan, Citizenship and the European Community.
159
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Anderson et al, European citizenship and co-operation in justice and home affairs.
Ibid, p 109.
Ibid, p 109.
Ibid, p 104.
160
More notably, the Amsterdam Treaty took a small step into the sphere of
human rights. It declared that: The Union is founded on the principle of
liberty, democracy, respect for human rights and fundamental freedoms, and
the rule of law (Art F.1). The preceding Inter-Governmental Conference had
again rejected the proposal to incorporate the ECHR, and agreement was
possible only on this less far reaching provision. There are two dimensions of
relevance here: the relationship of the citizen to his or her national
government and the relationship between the individual and the EU
institutions.
On the first, the Amsterdam Treaty states that if the European Council
determines the existence of a serious and persistent breach by a Member
State of the principles already noted, then the State in question may see some
of its rights, including voting rights in the Council of Ministers, suspended.
The reality appears very modest, however. A denial of human rights is to be
penalised by a withdrawal of Council voting rights. This is, of course, a
minefield for the EU. The European Council (not the ECJ) would be
intervening in domestic relations between the citizen and his or her Nation
State, with no clear set of criteria to which to refer. Moreover, any such action
would no doubt be placed alongside the involvement of the European Court
of Human Rights in Strasbourg, complicating the process yet more.
The Amsterdam provisions may have yielded more on the second
dimension. Any individual can now take the European institutions to the ECJ
over any action which they consider a breach of their fundamental rights. The
process here involves a direct judicial adjudication.
The Amsterdam Treaty took a notable first step into the realm of human
rights, but its provisions remain limited and unclear. The Strasbourg ECHR
was created in direct response to the evils of fascism. The prospect of EU
enlargement to incorporate former Stalinist dictatorships prompted the EU to
do something of its own, but they could not agree on very much. The result is
something of a mishmash. EU citizenship, by itself, still confers little
protection of basic human rights and grants few political rights. Its most
notable anchor remains the economic one of the creation of an open, internal
market, and pursuit of this prompted action on labour mobility, which was
subsequently enlarged upon. EU citizenship is clearly supplementary to
national provisions and its conception remains much more limited than that
normally found within Member States. EU membership is more about
travelling across borders than about a separate protection of citizenship or
human rights. The overall effect is that the conception of citizenship at the
European level remains somewhat skewed.
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162
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steadily eroded over the last two decades. The citizen can also make a direct
input into the EU system by voting in the elections for the EP. These elections,
the worlds first international elections, have been a significant innovation.
Yet, they elect candidates to what is still the weakest of the EUs major
institutions, and though turnout levels vary (in some instances, compulsory
voting keeps it relatively high), they are still clearly second order elections in
comparison to their national counterparts. Putting all this together, the citizen
has the most direct input where it matters least, in the EP, and has the most
distant input where it matters most, in the Council.
More generally, the relative absence of the structures and processes of civil
society structures at the European level means that EU politics remains
essentially nationally-driven, and national fragmentation seriously limits the
scope for democratic accountability. In most instances, legitimacy, in turn, is
largely retained by national institutions. 13 In much of northern (if not
southern) Europe, Brussels and the EP, when not subject to rejection or
relative neglect by the mass public, suffer from its indifference. European
opinion is rarely more than the sum of its (national) parts.
13 Eg, Featherstone, Europeanisation and the centre-periphery: the case of Greece in the
1990s.
14 Bogdanor and Woodcock, The European community and sovereignty, p 482. See
Toussaint Committee, Report Drawn up on Behalf of the Committee on Institutional Affairs
on the Democratic Deficit in the EC; and the subsequent European Parliament resolution
of 18 July 1988, OJ C187, 1988, p 229.
164
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18 Pugh, Seeking a Voice: The Voluntary Sector, Social Policies and the European Union.
19 Mazey and Richardson, Lobbying in the European Community; and ibid.
20 Ibid, Pugh.
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The spill over from the single European market programme has been highly
consequential in this regard, even more so than the activism of the
Commission per se. It is characteristic of EU social policy that it should be
market driven in this way.28
Thus, the impact of the EU has been to provide a basic and partial set of
regulations offering social protection, but also to constrain national
governments in a complex, multi-level system of authority. Citizenship rights
have been extended to a limited degree, interest groups have found a new
focus for lobbying (the Commission), but democratic accountability has been
warped by the prism of the EUs institutional structures and participation by
the public remains somewhat distant.
EU environmental policy may be regarded as a quiet, and limited, success.
EU action has grown considerably in recent times. It was not envisaged in the
original Treaty of Rome, and prior to the Single European Act, the
Commissions competence to act was somewhat tenuous.29 Nevertheless, it
did act, often led by a troika of Germany, Denmark and the Netherlands
whose energy overcame the inertia of the laggard States Belgium, Greece,
Italy, Ireland, Spain and Portugal. 30 Moreover, In the absence of (such)
Community rules no relevant environmental rules would come into being at
all in large parts of the Community.31 EU action is both heightening and
extending environmental protection, intruding into societies where the citizen
has little safeguard. Additional provisions on environmental policy were
adopted by the Amsterdam Treaty in June 1997. The environmental sector is
marked by close interrelation between the Commission and interest groups.
Sbragia reports that environmental lobbyists have found Directorate General
XI of the Commission very receptive. The Directorate is often accused of
having been captured by the green lobby.32 EU level pluralistic politics has
clearly emerged, consistent with the citizen activism found in the international
environmental movement.
But, of course, the sector in which the EU is set to make its newest and
biggest impact is European Monetary Union (EMU). This is a case which
stands in stark contrast to those of social and environmental policy. Here,
policy innovation at the EU level is taking place in relative isolation caused by
the lack of democratic accountability and the secrecy of decision making in the
EU and the diminution of existing remnants of national parliamentary
responsibility. Monetary policy at the national level has long been dealt with
in a closed, insular world of technocratic officials and finance ministers. The
28
29
30
31
32
33 Dyson et al, Strapped to the mast: EC central bankers between the Maastricht Treaty
and global financial markets.
169
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the Council of Economic and Finance Ministers (ECOFIN). These two bodies
will retain the general policy remit their precursors currently enjoy and the
right to establish international agreements on the new single currency. But, no
outside body can disturb the responsibility of the ECB to maintain price
stability.
EMU will, thus, be a closed world. Democratic inputs on a change in the
policy mix (deflation, reflation, etc) are simply ruled out. National
governments will be left to manage their fiscal policy (though even here there
are constraints), without use of monetary policy levers. Of course, the
commitment to price stability under EMU will also constrain the agenda in
other policy areas, for example, the adoption of redistributive fiscal policies. In
short, EMU will place a straitjacket on national policies and one determined in
a rarefied, closeted sphere of unelected monetary technocrats. Monetary
policy is usually opaque, but this creates new distance and excludes any
meaningful form of participation. It may be a necessary architecture, also one
perhaps based on a set of policy principles essential to economic growth. In
the new global, financial environment of George Soros and Nick Leeson,
national autonomy increasingly looks a sham. The point is, however, that
monetary policy will be more intrusive in to other policy areas and will be
determined in a manner which erased any meaningful notion of
accountability. This raises deeper and wider questions about the legitimacy of
the European integration process.
36
37
38
39
Featherstone, Jean Monnet and the democratic deficit in the European Union.
Ibid.
Pinder, European Community and nation-state: a case for neo-federalism?, p 43.
Ardagh, The New French Revolution: A Social and Economic Survey of France 194567, p 17.
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The long term effect has been for the creation of a sui generis institutional
structure at the EU level. It combines different institutional forms, and
uniquely, the Commission. The problem is that the Commission on its own
possesses little democratic legitimacy. Its heads are appointed by the national
governments for renewable five year terms. Public support for the
Commission appears dependent on the popularity of the policies with which
it is identified. As an institution it is unattractive. This does not deny that
public attitudes to the Commission vary significantly. It has a better profile in
smaller states (as their protector) and in aid-recipient states (as their
benefactor). Rather it is to claim that the Commissions institutional
foundation is fragile when placed in the context of contemporary attitudes
towards democracy and accountability.
This legitimacy problem can only be overcome by the reform of the
Commission. This might embrace its composition, structure or powers. At
Amsterdam there was a general failure to agree on how the composition of
the Commission might be affected by future enlargement of the EU. Yet, EU
history has shown that Monnet was right in one crucial respect. For
integration to proceed, it requires a strong driving force at the centre. Monnet
ascribed this role to the Commission and it is difficult to see it being
effectively located elsewhere. To be successful, it would seem that reform of
the Commission should address the participation problem that is linked to the
design of the institution. Participation and effective leadership are linked.
173
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174
CHAPTER 9
COMMUNITY POLITICS
Barry Knight1
Community has climbed way up the political agenda. With the election of the
Labour Government in May 1997, the issues of local governance and
community participation have come to the fore, and are likely to become more
important in the early part of the next century. A cornucopia of ideas of
community has emerged from academics, think tanks, and practitioners in
recent years. They include: communitarianism, citizens juries, local referenda,
community plans, citizens commissions, focus groups monitoring policy and
practice, community computer networks, social entrepreneurs, Planning for
Real, Citizen Organising, decentralisation of power and budgets and
Community Chests.
This emphasis on community has, however, been evident for some time,
and was certainly there before the election. Recent years have seen a massive
upsurge in literature reminding us of our mutual responsibilities as citizens.
Amitai Etzioni has put forward communitarianism,2 Robert Putnam has
stressed the importance of social capital,3 Francis Fukuyama has noted the
value of trust,4 and David Selbourne the virtues of duty.5 Journalists have
also taken up the theme of community. In February 1997, Neal Ascherson
wrote an article with a significant title: When Soros debunks capitalism, you
know a sea-change is on the way. Acherson showed how the tide of informed
of opinion was turning from the me society of the 1980s to the we society of
the next millennium. He pointed out that politics was shifting from the
individual to the collective, from the market to the civic, and from the greed of
the few to the morality of the many.
Around the same time, Geoff Mulgan, Director of Demos, noted that:
Communitarianism, the arguments around civic society, trust, stakeholding,
the green arguments about everything from land to the biosphere, even the
arguments from evolutionary psychology into why people co-operate; are all
like streams feeding into the same river.
1
2
3
4
5
Helpful comments on an earlier draft of this chapter were given by Anita Guy and Eric
Adams.
Etzioni, The Spirit of Community: Rights, Responsibilities and the Communitarian Agenda.
Putnam, Making Democracy Work: Civic Traditions in Modern Italy; and Putnam, Bowling
alone, revisited.
Fukuyama, Trust: The Social Virtues and the Creation of Prosperity.
Selbourne, The Principle of Duty.
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The consequence, Mulgan suggests, is that we are now on the brink of a real
society.6 But are we? Is there really such cause for such optimism? Does this
represent anything more than an elite group of commentators talking up an
issue? In this paper, I want to look at the prospects for the invigoration of
community in the light of evidence from research currently underway for the
Foundation for Civil Society. I want to pick out seven factors with a bearing
on this.
The first factor is that history teaches us to beware of fashion. The notion
of community, particularly the role of community associations, was
promoted vigorously during the Second World War. Indeed, the first major
academic study of community organisation stemmed from Peter Kuenstlers
wartime experience of working during the blitz in the East End of London.7
After the war, the importance of community association was quietly
forgotten.8 In the late 1960s, community became fashionable again, partly
because of fears about race. This time community found official expression
through the Home Office Community Development Projects, though as soon
as the projects began to deliver results that were politically inconvenient, they
were dropped.9 There is a big risk in jumping wholesale into any particular
sphere without realising that practitioners working in that sphere have to live
with the consequences of stop-go fashions in social policy.
The second factor is the weight of history. Peter Stokes and my research,
modelled on the work of Robert Putnam from Harvard University, suggests
that there is a long term and continuing tendency to develop institutions that
foster peoples participation in public life churches, trade unions, civic
associations and mutual aid organisations.10 The importance of local has
declined over the past 20 years with 138 Acts of Parliament between 1979 and
1994 amending the powers of local government, almost always in the
direction of reducing its powers and status. Society has become more
atomised, with record numbers of people living alone and relationships
between neighbours becoming increasingly cool and distant. Young peoples
participation in public affairs is so low that it is common to talk about the lost
generation.
We have run our social capital the glue that binds us together in
relationships down to levels that are so low that they are dangerous for our
society. There are 40 areas in Britain where social capital appears to be
exhausted, where all semblance of community has collapsed and people live
in fear. In these areas, burglaries, car crime, violence, threatening behaviour,
6
7
8
9
10
Community Politics
all night parties, drunkenness in the street are the norm. People who can think
no bigger than dealing with their immediate problems adopt a siege mentality
and withdraw from the public stage. Such observations are not confined to
areas traditionally considered poor.
Thirdly, over the last generation there has been a marked change from the
values of community to the values of the market. John Tusa has argued that
the language of the market is now so ingrained that even the notion of the
whole individual is under threat. This Balkanisation of identity has elevated
the roles of consumer, purchaser, and customer above the broader and more
humane roles of family member, citizen, and member of the public.11
Borrowing from Ivan Illich, Tusa says that the answer lies in the pursuit of
conviviality. Conviviality is different from mere pleasure in that it involves
personal exchanges and increases social bonds. Tusa argues that all policies
and programmes should be evaluated according to the extent that they
increase conviviality, and challenges politicians to use conviviality as a
criterion in this way.
This brings us to the fourth factor. The new government, rather than
espousing conviviality, has so far made only cosmetic changes to programmes
affecting the community. Single Regeneration Budget programmes have been
tweaked a little at the edges and Teaching and Enterprise Councils assured
that they will survive despite being evaluated by the House of Commons
Select Committee on Employment as mostly harmless. Proposals for new
Regional Development Agencies appear tired, being confined to the stock-intrade of previous government-led economic development initiatives measures
such as inward investment, support to small businesses, development of rural
areas, co-ordination of regional selective assistance, and European funding.
The Social Exclusion Unit, announced on 13 August 1997, is a departure from
previous practice, though it appears to be focused on Whitehall machinery
and, with its emphasis on co-ordination and targeting, is using the narrow
value for money language of the previous administration.
This is disappointing given the wealth of evidence that, in the past,
government policy has failed poorer communities. The previous
governments own research has shown, not only that trickle down policies
fail, but that economic polarisation has actually increased within areas where
government programmes have been active.12 It is perhaps small wonder that
the publication of this research was long delayed, and the report is priced at
40 so that few will buy it.
However, it would be harsh to judge the present government too soon. It
may well find new and effective methods of engaging with the community,
moving on beyond its present rhetoric about the importance of civil society
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Community Politics
179
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This gap between local views and official views is a vital issue in community
politics. Its significance can be illustrated by an incident in international
development that took place 50 years ago. Shortly after the Second World
War, Peter Kuenstler (whose book on New Community Organisation helped to
invent community studies as an academic discipline) arrived at a village that
had been more or less obliterated by shellfire. Peter was working for an
international development agency and had a lorryload of cement. Although
not quite equivalent to the value of gold dust, cement was in short supply at
that time and could command a high price. Peter had it within his power to
17 Brass and Poklewski Koziell, Gathering Force: DIY Culture Radical Action for Those Tired
of Waiting.
18 Ibid.
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Community Politics
offer the cement to the village, though for reasons of accountability, had to ask
the villagers for a formal application so that appropriate paperwork could be
completed to cover the transaction. The village elders retired to consider how
they would use the cement. Within a short space of time, they returned to tell
Peter of their decision. What they needed, they said, was a fountain, A
fountain? What on earth do they need a fountain for?, thought Peter,
surveying the devastation all around him. However, Peter swallowed his
doubt, remembering his personal philosophy that people know best what
they need. So he signed off the cement and went on his way. Two years later,
he returned to the village. It had been completely rebuilt. The people had built
the fountain together. Each evening after the days work, they had
congregated around the fountain, and had planned the next days work.
Together, as a community, they worked in this way until they had together
rebuilt their village. Perhaps the value of the cement was greater than gold
dust.
This incident reveals a universal truth. Given resources, and freedom to
use them as they see fit, people are powerful and competent, and do not need
direction from above.
Tony Gibson has explored the implications of this truth in a number of
books, and has recently drawn attention to the potential for neighbourhood
based world shaking.19 A key question for the next 20 years is whether those
in conventional politics can harness the energies of those in community
politics for the greater good of our society and, in so doing, reshape power
balances and reform the character of politics in favour of greater inclusion. A
second question, no less important, is what happens if they do not.
CHAPTER 10
Nicholas Deakin
INTRODUCTION
One of the central forms of participation in contemporary British society is
involvement in charity, either through charitable donation or voluntary
action. This involvement can serve both symbolic and practical ends. In this
paper, I will try to disentangle some of the different functions the concept of
charity currently performs and relate their development to the broader debate
about the future of civil society in this and other Western societies.
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the internet. The role it has assumed (not to the liking of all concerned) now
encompasses acting as advocate and advisor as well as regulator. The model is
of a stakeholder organisation which is answerable to all its customers, defined
in the broadest sense.5
Yet there are still significant gaps in the range of activity now undertaken
by the Commission in the name of charity. The Commissions writ extends
only to England and Wales; and attempts to extend its functions to Scotland
have attracted no support there. Those voluntary organisations that operate
outside the fold of the Commission or on its margins are not always
convinced that its activities are in their best interests. Community and
campaigning organisations still express concern that their evolving approach
to new situations and responsibilities are not properly reflected. Contrariwise,
there is recurrent concern that the tax breaks associated with charitable status
are not always going to the right organisations. There are echoes here of a
debate about the fiscal and legal environment of charity which presently is
much further advanced in the United States.6
These anomalies notwithstanding, the concept of charity, however
indistinct its outlines may be, still occupies a prominent position in the
national psyche. It remains one of our household gods, to be invoked through
sacrifices at times of trouble, rewarded with offerings at moments of success
or a pinch of incense to ward off bad luck (the cancer charities surely owe
some of their success to their use as an oblique form of insurance).
The profile of charity has been enhanced by two recent developments: the
rise of highly publicised fundraising events for third world causes (Bandaid
and its successors) and the introduction from 1995 of the National Lottery.
The good causes with which the Lottery is associated in the public mind
(brilliant publicity!) are more varied than the purchasers of tickets who have
contributed to them always realise, as was made abundantly clear by the
purchase of the Churchill papers. However, the focus on charitable action
through the National Lottery Charities Board and the emphasis given to
schemes for worthy (telegenic?) recipients at the Lottery draw helps to keep
the concept of charity firmly in the public mind as a common good.
Through the Lottery, charity has become for the general public a source of
near-painless virtue, perhaps to the detriment of other forms of charitable
giving that lack the lure of riches almost beyond the bounds of imagination.
And for the prominent citizen or celebrity, a charitable donation can wash
away unsightly stains of cupidity or taint of excess, or compensate, as in the
case of Camelots directors, for being too successful in persuading others to
contribute to their own profits through purchasing lottery tickets. Few,
however, have yet gone as far as the publicist whose advice to politicians
5
6
Fries, Interview.
Salamon, Holding the Center: Americas Non-profit Sector at a Crossroads.
185
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caught indulging the sexual peccadilloes that so fascinate British tabloids was:
say you do charitable work with dying children.
This exhortation represents in extreme form the notion that participation
in charitable activity is undertaken for the benefit of the participants. Other
forms of involvement do recognise that the process is an exchange that has
wider consequences for the recipients as well as the deliverers of voluntary
services. It is possible to trace a progression from the visionary work of Alec
Dickson, whose invention of Voluntary Service Overseas (VSO) was followed
by bringing the lessons of that worthy enterprise back home through the
Community Service Volunteers, to the invention of the active citizen as a role
model by Tory politicians concerned about the missing element of morality
in their project for the reform of Britain.
But, during that progression the notion that volunteering was a useful way
of teaching the children of the middle classes in late adolescence some of the
civic virtues turned into something altogether less laudable; the notion of the
conscript volunteer. In a series of Manpower Services Commission (MSC)
programmes informed by this notion, young working class males for whom
there was no longer work in the depressed economy of the mid-1980s were to
be socialised into acceptance of their permanently limited prospects. Both the
programmes and the MSC disappeared once economic recovery began to
refresh even those desolate spots where heavy industry had once provided a
lifetime of secure manual employment. But the format reappeared, barely
modified, with the second Conservative recession at the end of the decade and
now forms a component part of the Welfare to Work programme of the
Conservatives Labour successors. Under this revamped initiative, voluntary
organisations are contracted to manage many of the transitional programmes
which may, with good fortune and the advantage of favourable demographic
trends, perhaps get a proportion of the excluded into lower paid employment
(or fill in their time as Millennium Volunteers).
186
A variety of reasons have been offered to justify this perception. One is the
impact of structural change in the economy leading to the loss of employment
in manufacturing industry and the spread of job insecurity in other sectors.
Another is social change, and in particular the decline of the family in its
traditional form. A third is changing attitudes caused by the impact of a
decade of possessive individualism, in which personal success was measured
exclusively in financial terms. A further explanation that is sometimes offered
is a loss of confidence in established social and political institutions,
principally those of government. The public, encouraged by the mass media,
see the traditional sources of authority in society as ineffective, even corrupt.
The pressure of constant publicity first builds up, then undermines the
credibility of those exposed to it.
How far are these arguments valid? Even with due allowance made for
the crudeness of the paraphrase given here, the answer must surely be not
very, at least in the form in which they are normally presented. Many of these
arguments are typical golden age thinking, the eternal lament of an older
generation about the heedless hedonism of the young.
It is true that the structure of mature economies in most developed
countries has changed and the consequences of this in terms of the
distribution of life chances have been far reaching. But to suggest that this
process in itself necessarily results in a uniform decline of civility in all the
countries affected is simply nonsense. Social, political and cultural factors in
each country or even region have produced widely different outcomes. In this
regard, one can compare the flexible Anglo-Saxons with the Rhenish or
Dutch polder approach.
It is also true that, as its critics would say, the possessive individualism of
the 1980s has left its mark, at least in part, in breaking any clear connection
between the level of reward for and the merit of an individuals performance,
whether measured by the quality of that performance or by the collective
benefit it conveys. But the release of entrepreneurial talent which was one of
the objectives of the governments attack on restriction and regulation has
been genuine enough and is of obvious relevance to the voluntary sector, now
busy trying to breed its own social entrepreneurs.
The decline of the family is contentious territory. It is a favourite
argument among critics of recent developments that the traditional family has
been one of the basic building blocks of society and is now under threat.
Others would counter by asking what kind of structure the traditional family
helped to construct. It usually was one, they would maintain, in which gender
roles were prescribed and aspirations were constrained. What is beyond
dispute is that increased participation by women and in particular women
with children in the labour force has created a very different situation. This is
a process that cannot, and most people would add should not, be reversed.
The main question should, therefore, be how to adapt to it, not how to resist
and reverse it.
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The issue of the attitudes of the young is the most pressing issue for many
commentators and policy toward it is almost equally vigorously contested.
But recent research suggests that the perception of a whole age group as
disconnected or switched off is a gross oversimplification.7 Rather, the
problem may lie in the choices which society presents to the young and the
type of institution or cause in which it invites them to participate.
Finally, there is the question of the institutions of government and the
structural changes that have taken place in both their forms and their
functions. This is in many respects the hinge on which the debate turns. The
future shape of civil society may be being formed in an environment in which
the States role is changing, but to call this a rolling back is to misunderstand
the processes that are at work. If there has been a retreat, it is at most a tactical
withdrawal and regrouping. The changes in the functions that the State now
performs do not reduce the power it exercises, but concentrate it.8
True, some of the spaces surrendered as part of this process of contracting
the State do offer new opportunities for other players to take part (for
example, organising and delivering services previously provided by the
State). But this is territory on which voluntary and community organisations
will have to operate on the States terms; on the terrain of the contract
culture. The rhetoric of partnership is frequently employed to describe this
process, but power and resources remain largely the property of one partner.
So, participation in this context is very much a matter of structured
involvement on terms which there are only limited opportunities to
renegotiate. Whether this contributes in any real sense to the remoralisation
of society which is part of the agenda for some of those seeking a more
permanent withdrawal of the State is a debatable question.9
7
8
9
pluralist political culture.10 The roles of the differing interests change and
take differing forms which are determined by the specific historical experience
of different societies. But civil society does not need to be reinvented. It has
never gone away; and nor has the State.
That said, we should also recognise that there are real issues around the
decline in participation in most formal institutions, at least in the UK. These
institutions include the trades unions, most churches and some political
parties. There has also been a decline in participation in orthodox political
activities, some of which can be traced to the debilitating effects of social
deprivation. In other cases, racism, which remains endemic in some
traditional organisations, is the main factor at work; discrimination on
grounds of gender, less overt than it once was, is also still significant in
affecting both the forms of participation and its extent.
All these symptoms might legitimately lead to the conclusion that we are
spending social capital faster than we are accumulating it. Certainly, this is
one of the main messages in the communitarian texts which have had a
significant impact on policy makers on both sides of the Atlantic.11 Here, the
emphasis is on reinforcing the primary institutions of society such as family,
community, bars, clubs and cafes in the neighbourhood, clubs, churches and
other places of worship.
One problem is that this activity is often advocated without context. It is
never made entirely clear why we should engage in the quite elaborate
strategies designed to produce these communal outcomes. They are
presented as self-evidently good things the motherhood and apple pie of
the clich. Yet we know from experience that participation can produce
tyranny, both at local and national level, and that bona fide representatives of
communities can compound disadvantage by excluding minorities of all
kinds from access to goods and services. The extensive literature on
decentralisation and the issues involved in attempting to promote greater
citizen participation contain important messages about the tensions between
promoting stable, cohesive communities and safeguarding the rights of
minorities.12
If the advocates of the communitarian approach are frequently naive
about ends, they are also often remarkably insouciant about means. The
notion that charities (or associations) can readily take on functions that the
State has abandoned or markets do not care to perform is widespread across
politics, but rarely is based on evidence or any clear understanding of the
10 Knight and Stokes, The Deficit in Civil Society in the UK.
11 Etzioni, The Spirit of Community: Rights, Responsibilities and the Communitarian Agenda
and Putnam, Making Democracy Work.
12 Gaster, Management Skills in Decentralised Environments; Hoggett, The Future of Civic
Forms of Organisation; and Jordan and Jones, Association and exclusion in the
organisation of social carers.
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capacities which charities actually possess.13 The idea that individuals can
take on these roles without benefit of formal organisation is even more
optimistic. The extent of volunteer involvement in this country is
impressive.14 In this country we are generous with our time, though less so
with our money. But, the content of volunteer-based action is less impressive.
Current anguished debate in the UK about managing and even paying
volunteers is symptomatic of a general uncertainty about what purpose is
being served and who is really benefiting from volunteering.
Yet governments still persist in believing that there is a vast resource out
there that can be called up ad lib to serve the official agenda.15 And some
representatives of the voluntary sector have a vested interest in colluding with
this delusion and not spelling out the difficulties involved both for the
government and for the sector itself. Debate about the contribution of
voluntary bodies has instead tended to focus on standards of performance
and ways of improving the quality of services increasingly delivered outside
the State. These are important topics, but not central to the question of how
these tasks are to be performed without compromising the distinctive
qualities of the voluntary and community sector.
In fact, there is now much hard won knowledge about these issues derived
from experience with local community-based initiatives. True, much of it is
specific to the localities in which it has taken place and some of it is about
failures, which admittedly are sometimes more revealing than successes. This
experience has not yet been properly linked to the top-down theorising about
ideal institutions and identikit virtuous individuals who can be mobilised in
their service. These are the fantasy active citizens who are to make a
difference for governments of all political complexions.
The communitarian stress upon obligation, duty and responsibility has
met with widespread approval. So how can these qualities best be cultivated?
The negative approach is only too well known. It includes bringing back
supervised homework, national service, the cat or an avenging god, and
showing zero tolerance (or, at most, compassion with a hard edge) toward
those who do not conform. This agenda of social control often generates an
understandable tendency to opt out of mainstream association activities
altogether. The fashionable critique of contemporary society on the grounds
that participation is a trap and that good causes are their causes, not ours
(reminiscent of the rhetoric of the class of 1968) is based on this sort of feeling
of resignation.
Promoting Participation
public life laid down in the Nolan Committee Report also represents a
challenge to meet standards of performance at least equivalent to those in the
reformed public sector. Fitting the activities of volunteers into this pattern
presents special difficulties for managers and volunteers alike.
Finally and most challengingly of all, it will be necessary to establish
reasons for needing to retain and develop a charitable sector, privileged and
regulated as such. Some, like Perri 6 at Demos, now argue for abandoning the
whole notion of charitable status. Others want to constrain it, by limiting the
extent of charitable participation in the space between State and market or the
terms on which participation takes place,17 Others still would split the
charitable sector as a way of establishing its authenticity.18 This would
involve hiving off larger organisations into a separate category and looking
beyond the crude criterion of size to the grassroots or to certain forms of
practice or styles of activity to identify the authentic charitable sector. This
would help to limit both the benefits (tax breaks) and the obligations but
leaves the issue of definition unresolved. Yet, given the almost infinite variety
of activities now taking place under the title of charity, can they continue to be
accommodated in one mansion, however many rooms it contains?
There are no clear answers to these questions, yet. Facilitating creative
chaos (Ralf Dahrendorfs slogan) is all very well when it can be shown that
the creativity is functioning to the public benefit and meeting needs that
would otherwise go unmet. But what if creativity is employed to destructive
ends or chaos rebounds on those least able to cope with the consequences?
Here, the States role has to be more than that of a passive observer or a
laidback regulator. Yet how can accountability be preserved without
compromising independence? To strike that balance successfully may be the
most difficult task of all.
CHAPTER 11
Tony Rees
VOLUNTEERING
This chapter will, as its title indicates, explore the connection between
participation and volunteering. Given the strength of voluntarism in the
British Isles, this may seem rather an odd enterprise. Surely the relationship is
so intimate as to make the two almost synonymous? Nevertheless, it will be
argued that the correspondence is less obvious and the conceptual fit less
exact than the conventional opinion suggests, and there are many rough
edges, many ends left trailing.
When Mrs Thatcher, in her famous speech to the Womens Royal
Voluntary Service (WRVS) in 1981, declared that the volunteer movement is
at the heart of all our social welfare provision, and opined that the
willingness of men and women to give service is one of freedoms greatest
safeguards,1 her words were resented by some in the voluntary sector as a
crude attempt to co-opt the movement for party political purposes.
Nevertheless, the ideal of active citizenship as sketched by her and later filled
in by Douglas Hurd and others struck many chords. Quite apart from
anything else, it was very flattering to the army of volunteers itself.
For there is no doubt that there is a great deal of volunteering in Britain.
The obvious sources for information on this are the large scale national
household surveys carried out for the Volunteer Centre UK/National Centre
for Volunteering. To date, there have been three of these, in 1981, 1991, and
1997. 2 The studies employed the same methodology, questions being
replicated from survey to survey. All defined volunteering as any activity
which involves spending time, unpaid, doing something which aims to
1
2
Quoted in Sheard, From Lady Bountiful to active citizen, p 118. Nicholas Deakin, who
also quotes excerpts, calls Thatchers a full dress (in every sense) speech, The Politics of
Welfare, p 168.
The first two surveys were commissioned by the Volunteer Centre UK and carried out
by Social and Community Planning Research. Field and Hedges, A National Survey of
Volunteering; and Lynn and Davis Smith, The 1991 National Survey of Voluntary Activity
in the UK. The most recent survey was conducted for the National Centre for
Volunteering (formerly, the Volunteer Centre UK) by MRB International. Davis Smith,
The 1997 National Survey of Volunteering.
193
Promoting Participation
3
4
5
National Association of Citizens Advice Bureaux Research and Development, The CAB
Service: Trends and Statistics.
Sheard, From Lady Bountiful to active citizen, p 115.
Davis Smith, The 1997 National Survey of Volunteering, p 44.
195
Promoting Participation
9
10
11
12
PARTICIPATION
In a broad sense, participation means no more than taking part in some
activity. This introduces at the outset two respects in which volunteering and
participation occupy conceptual terrains which, though overlapping, are far
from coterminous. As we have seen, the notion of compulsory volunteering
usually evokes a slightly uneasy laugh. However, the parallel concept of
compulsory participation should not even raise an eyebrow, since it is a
common product or feature of social institutions. Team games at many
schools or community service orders would be examples. This is a matter
which I shall take up later.
On the other hand, someone may volunteer to be a spectator, to make up
the numbers for instance, but mere presence at an occasion or event is usually
not enough to count as participation. Some degree of active involvement is
required, even though it is often difficult to know where to locate the
threshold. Take a theatrical performance as an example. The chemistry
between the actors and their audience will result in very perceptible messages
of approval, disapproval or indifference, and will be one of the chief factors
determining the success or failure of the production. Participation is
therefore commonly arranged along a spectrum or continuum; at some point
along the line, advocates of more participatory systems will conclude that the
participation has become genuine or meaningful. More than 25 years ago,
one such writer, Carole Pateman, summed up a critique of the prevailing
tendency to equate democracy with free competition for the peoples vote in
the following words:
The contemporary and participatory theories of democracy can be contrasted
on every point of substance, including the characterisation of democracy itself
and the definition of political, which in the participatory theory is not
confined to the usual national or local government sphere. Again, in the
participatory theory participation refers to (equal) participation in the making
of decisions, and political equality refers to equality of power in determining
the outcome of decisions, a very different definition from that in the
contemporary theory. Finally, the justification for a democratic system in the
13 The 1997 National Survey of Volunteering found that 4% of current volunteers were
involved in political organisations.
14 It should however be remembered that councillors (an important subset of the political
class) have received allowances for more than 20 years: in the case of Leaders of
Councils and Committee Chairs this remuneration may amount to a tidy annual sum.
197
Promoting Participation
Some may feel that this is rather too politicised a view of participation to be
unequivocally applicable to voluntary associations. The stress on power and
decision making, although understandable in political scientists, political
philosophers or politicians, may distort the nature of participation. Even
without for the moment going in to motives for volunteering, it can be
quite confidently assumed that most participants do not act because they want
a slice of power, or in order to take decisions on behalf of others. Note,
however, that Pateman explicitly extends her analysis to institutions other
than those central to the political sphere; the latter half of her little book pays
much attention to authority structures in industry, a topic more fashionable in
the 1960s and 1970s than now.
The voluntary sector undoubtedly presents some special problems for
participation theory. This is partly because of its heterogeneity, and partly
because the existence of a spontaneous order is often simply assumed, despite
the formalisation of structures which has been one of the principal
developments of recent decades. Thus, there is, first, the question of the
delineation of relevant sets of actors, and how they relate one to another (that
is, how lines of accountability should be drawn). Secondly, there is a
distinction to be made between direct participation and indirect participation
(representation). Patemans emphasis on decision making makes it easy to
separate out work (service delivery, the performance of tasks) from decisions
about work (policy making, management, oversight). In voluntary bodies,
either or both may be assigned to volunteers. However, although service
delivery may be solely carried out by paid staff (in organisations using no
volunteers for this purpose), there must be some voluntary input at the
higher, or governing board, level. The ubiquity of such bodies in addition to
the legal responsibilities vested in them makes them a promising starting
point for an exploration of these questions.
In a series of articles published over the past decade, Margaret Harris has
dissected the dilemmas faced by these bodies.16 Here I shall call upon the
summary of her researches and experiences contained in the volume she
edited with Billis.17 She starts by outlining a number of manifest functions of
management committees: an accountability function, an employer function, a
Promoting Participation
like. Here, unlike in the traditional model, there is a closed circle rather than
a chain, since the guardians are also the beneficiaries. This leads, according
to Harris, to a situation in which the clarity of relationships is lost, and she
suggests that either there will be tension between governing boards and
professional, paid staff over the authentic interpretation of the latters role, or
the board will be bypassed, since the beneficiaries, as members and
guardians, already have direct avenues of approach to staff members. The
redundancy of the managing body is even more likely in the third, or
entrepreneurial model, since these are organisations revolving around
charismatic leaders, who are also the principal paid staff.
If governing boards do not attend to their duties particularly well (and, as
a generalisation, this is not proved), this may be for such mundane reasons as
that their members lack sufficient experience, expertise or knowledge of their
responsibilities, are too busy with too many other boards and committees, or
are cripplingly distant from the day to day running of the agency.22 There are
some familiar patterns in committee life, for example, chairpersons running
the show in tandem with the chief officer and treating the rest of the board
like a rubber stamp. There is no reason to suppose that traditional
philanthropic bodies are freer from these problems than other kinds of
voluntary organisation. Membership associations may encounter some of
them less, since at least they have members, and often highly committed ones
at that, by whom boards can be called to account. Indeed, these varied
ailments clearly do not only infect volunteers or voluntary organisations.
Board members may be paid and appointed and in the public or the private
commercial sectors and yet fail to exercise due oversight or to assert the
independence of judgement which they are supposed to bring to their roles. A
whole series of well publicised misjudgments on the part of health authorities
and NHS trusts, for example, might suggest that their non-executive directors
are not always up to their jobs.
More needs to be said about statutory organisations, since much of the
literature applying participation theory to the voluntary sector is centrally
concerned with their roles and relationships with the voluntary organisations.
Given that, in a contract culture, fees and charges are the single most
important and growing source of income for voluntary bodies, especially
in the social service field, and that old style government and local authority
grants remain significant, this is perhaps not surprising. The concern is with
dependence, manipulation and co-option, and appears in its starkest form in
theories which view citizen participation as like the rungs in a ladder,
stretching from the bottom (bad) to the top (good). This line of thought can be
traced back to a seminal 1960s article by Sherry Arnstein.23 Her Rungs 1 and 2
are manipulation and therapy, both non-participative. Rung 3 is
informing, a necessary first step, but frequently one-way and with no
channel for feedback. Consultation appears on Rung 4. Neighbourhood
meetings, public enquiries and attitude surveys are all legitimate mechanisms,
but, in Arnsteins view, usually just window dressing. Rung 5 is entitled,
tendentiously, placation. Selected worthies are co-opted onto committees,
where they can advise to their hearts content, but power holders reserve for
themselves the right to decide what to do with the advice. Partnership makes
up Rung 6. Here, for the first time, power is being genuinely redistributed
through negotiation between citizens and power holders, and planning and
decision making responsibilities are shared by means of joint committees and
the like. Rung 7 is delegated power. Citizens hold a clear majority of seats on
committees and the public now has the power to assure accountability of
programmes. Finally, topmost on Rung 8, is full citizen control.
It should be noted that Arnstein structures her schema partly through
relatively neutral concepts like consultation, which may appear in a variety
of organisational settings and procedures, and partly through attributing
some dismissive attitudes or malign motivations to power holders. In a
recent revision of Arnsteins ladder, Danny Burns24 sorts this out to some
extent, for example, by distinguishing between cynical consultation and
genuine consultation.
He also inserts several fresh rungs into the ladder, mainly towards the top,
thus increasing the distance between placation and the highest level which
he terms Local Policy Bottom Up Decision Making. As the penultimate stage,
he introduces a new requirement, for culture change, presumably on the part
of the power holders primarily. Why this should be necessary only on a bigbang basis, as a prelude to the full attainment of citizens control, is not
explained. That effective participation has to be learnt which entails tutelage
by someone is not accorded due recognition in these models.
Arnsteins citizens start their climb disempowered and alone. There seem
to be no pre-existing intermediate associations, including established political
ones, to complicate and, more importantly, to assist the ascent. Arnsteins
vision of citizens control, as have-nots handling the entire job of planning,
policy making and managing a programme, without intermediaries, is in
many respects quite wildly romantic. Someone will have to determine the
resources to be devoted to the programme, and this will often mean that final
control is in the hands of some outside body, probably a public authority.
Moreover, the necessity for representative structures, with all their attendant
problems of transmission from, and to, the grass-roots, is not acknowledged.
Promoting Participation
The entrepreneurial have-nots who make it to the top will inevitably cease to
be typical of other have-nots if they ever were typical. Volunteerparticipants need to be trained, which also means that they must have a
disposition to train themselves. Otherwise, they will be quite rightly ignored,
or alternatively do more harm than good.
One might even argue that citizen control goes beyond the bounds of
participation, as usually conceived. It certainly implies little respect for the
autonomy, or even the role, of professionals. If participation involves sharing,
its summation might be found towards the halfway point on the ladder, in the
area designated as partnership, rather than right at the top. Spending any
length of time on the middle of a ladder necessitates an even more
uncomfortable posture than being on the highest rung. Partnerships, in
official/voluntary as in marital relationships, may not find it easy to attain or
to retain equality and stability. Indeed, there may well be, as radical
participation theorists frequently deplore, a certain inbuilt tendency towards
official dominance, particularly of the smaller voluntary organisations.
NEIGHBOURLINESS
To take this further, we need to consider how organisations and associations
might be classified, which typically involves making some assumptions about
the motivation of volunteers. I shall take my examples from the burgeoning
field of community care. Taylor, Langan and Hoggett25 divide the voluntary
sector into three, distinguishing the following kinds of organisation:
(1) community (run by and for people from a particular neighbourhood, or a
minority ethnic community);
(2) user (run by service users or ex-users, or by carers for carers);
(3) donor (where people give their time or money to help others).
This is a useful, if familiar, categorisation (cf, Harris above, which has some
resemblances). However, the reason for citing it verbatim is that the authors do
not in fact follow it, even though, not surprisingly in a book concerned with
the encouragement of diversity, they cover a large variety of organisations,
including the wider non-profit and private commercial sectors as well as
voluntary associations. They restrict their study of community organisations
to those catering for ethnic minority needs, specially sampled in one locality
only in order to ensure coverage. Organisations run by and for people from a
particular neighbourhood appear under the heading of simple donor
organisations. They were usually organised as charitable trusts, had small
25 Taylor et al, Encouraging Diversity: Voluntary and Private Organisations in Community Care,
p 11.
202
26 Taylor et al, Encouraging Diversity: Voluntary and Private Organisations in Community Care.
27 Ware, Between Profit and State: Intermediate Organizations in Britain and the United States,
p 118.
28 Abrams et al, Neighbourhood Care and Social Policy.
29 Bulmer (ed), Neighbours: The Work of Philip Abrams, p 115.
30 Thus, The 1997 National Survey of Volunteering records (Table 6.1, p 62) 47% of currently
volunteering respondents saying that they volunteered because someone asked me to
help and 48% because I offered to help. These answers may be contrasted with both
instrumental and altruistic reasons like connected with my needs, interests (42%),
connected with the needs, interests of family or friends (45%), I wanted to meet
people, make friends (25%), I wanted to improve things, help people (35%) and there
was a need in the community (26%). Most respondents, of course, must have given
more than one reason.
203
Promoting Participation
The comparison between helpers and residents also shows that, although
around 70% of both had lived in the area for more than five years, the former
were much more positive about their locality than the latter. For example, 49%
of helpers, but only 26% of residents, believed that the area had a strong sense
of community. However:
A striking conclusion to be drawn from the patterns which emerged from the
findings regarding class differences is that it is the working class areas which
are more likely to be social deserts in terms of neighbourliness. Working class
participants and non-participants alike were markedly more likely to describe
their locality as one where people kept themselves to themselves than were
their middle class counterparts: no fewer than 77% of working class
respondents said this was the case.34
31
32
33
34
Collini, Public Moralists: Political Thought and Intellectual Life in Britain, 18501930.
Abrams et al, Neighbourhood Care and Social Policy, Table H/R4.1, p 37.
Ibid, p 38.
Abrams et al, Neighbourhood Care and Social Policy, p 42.
204
This clearly has a bearing on the often voiced opinion that volunteers, like
voluntary organisations themselves, do not tend to be thickest on the ground
where needs are greatest. Indeed, the problem in the most middle class of the
Good Neighbour Schemes, serving the most unambiguously middle class
area, Southfield Park in Affluaville, was not a shortage of volunteers, but a
shortage of people to be helped.
Lastly, another vexed question on which the researches of Abrams et al
shed light is the payment of volunteers. One of their schemes, Stonegate in
Hunting Valley, was actually statutory in its inception and operation, being
run as an adjunct to the home help service, and the work it provided was fully
waged. However, several other schemes made token payments, and the
authors argue that they played a significant role in persuading working class
helpers to come forward, less because of the attractions of the money itself
which was not great than because they were seen as a recognition that the
work was esteemed as valuable. Some remuneration, however small, may
thus help to break down social class feelings which inhibit volunteering.
Promoting Participation
36 Hirschman, The Passions and the Interests: Political Arguments for Capitalism Before Its
Triumph.
206
was also the only one that was clearly in the statutory sector, the Stonegate
Home Warden Scheme.37 This response was a very solid one, too, at 77%.
The case for statutory dominance has had other strands than top-down,
bureaucratic considerations, couched in terms of administrative efficiency,
coverage and adequacy. The impact of democratisation also needs to be taken
into account. To turn over the material fate of applicants for relief to unelected
members of the middle classes increasingly came to be seen, from the 1880s
onwards, as fundamentally disrespectful of the poor. One is reminded of the
crimes of the mother in JB Priestleys An Inspector Calls. As the leading
member of a panel of charity volunteers, the mother denied help to a pregnant
girl who later killed herself, whilst unaware that the father of the baby was her
own son. For this was a world without either procedural or substantive rights,
not even the scanty entitlements of the poor laws. From this standpoint, the
recommendation of the Majority Report of the 190509 Royal Commission on
the Poor Laws, made under the influence of the COS, that newly created
statutory Public Assistance Authorities should delegate vital parts of their
work to Voluntary Aid Committees, looks like something of a nightmare. The
proposal has, however, attracted the admiration of a present-day neoconservative, David Green. The intention, he says, was to maintain the
centuries-old tradition of a duty on government to provide a minimum
benefit, whilst avoiding the corruption of morals which had been the bane of
earlier schemes.38
One aspect of the developments referred to above is that volunteers have
gradually been more and more organised, which means subjected to
discipline. Volunteers have, thus, become more unfree and more like paid
employees in respects apart from remuneration. On the whole, it seems,
volunteers have taken to being managed pretty well. There is an appetite for
training, and it is suggested that what most surely demotivates volunteers is a
lack of clarity about what is expected of them.39 In many voluntary bodies, the
transition to modernised structures, with mission statements, precise job
descriptions, performance evaluation, the full use of information technology
and so on, has been made easier by the growth in the numbers of those whom
Peter Drucker calls knowledge volunteers. These volunteers, often early
retirees from large-scale public or private sector organisations, are highly
educated, with varied expertise and accustomed to the rituals and language of
corporate existence.
However, there are limits. Many people worry that voluntary bodies are
losing their distinctiveness and their spontaneity, turning into bureaucratic
organisations like any others. And, as the lines separating the public, the
private commercial, and the voluntary blur almost to vanishing point, the
37 Abrams et al, Neighbourhood Care and Social Policy, p 124.
38 Green, Benefit Dependency: How Welfare Undermines Independence, p 37.
39 For a discussion of this, see Davis Smith, Should volunteers be managed?.
207
Promoting Participation
For Rousseau, the great danger was that the general will would dissolve into a
multiplicity of particular wills. Republican virtue was always liable to be
subverted through the growth in inequality and its attendant vice of amourpropre. It therefore had to be constantly reinforced with programmes of civic
40 Baldock and Ungerson, What dya want if you don want money?.
41 Ware, Between Profit and State: Intermediate Organizations in Britain and the United States,
ch 3 is devoted to economic competition involving charities, a subject which has
otherwise received little treatment in the literature.
42 Rousseau, The Social Contract, p 138.
43 Shklar, Men and Citizens: A Study of Rousseaus Social Theory, p 5.
44 Ibid, Rousseau, p 149.
208
Present day advocates of large scale citizen involvement essentially make the
same plea as Rousseau, and, as we have noted, many individuals do devote
small amounts of their time to good works in the community, and, in some
cases, to committee work and to organising the activities of others.
Nevertheless, given the existence of many other concerns and distractions,
these seem unlikely in present day conditions to be hobbies freely adopted by
other than a smallish minority, at least on anything like the scale advocated
and required. Moreover, a society in which very large numbers busied
themselves with citizenship obligations could easily turn out to be oppressive
and illiberal not so much a matter of taking in other peoples washing, as of
seeing that everybody carries out the weekly wash.
In the political field, activists expect, as a reward for their activism, a
dividend in the form of control of, or at least significant influence over, the
policies adopted by their party. The only question is how large for them this
dividend should be. Currently, it appears to have diminished in the Labour
Party, with only sporadic dissent from the grassroots, but demands for a
greater say have become commonplace in the Conservative Party. As we have
seen, it less easy to specify dividends for volunteer participants in social
welfare associations, but the continued prevalence of donor organisations and
the fact that volunteers differ markedly from non-volunteers mean that a gap
opens up between helpers and helped, which it is very hard to close even
when those involved sincerely wish to do so.
Compulsory participation is currently very much in the air, like a prickly
sensation. It is quite likely to migrate from the atmosphere to a more
institutionally solid location. The new Blair administration simultaneously
possesses both permissive and prescriptive impulses. So far it has stressed
that it wants participation in its various welfare to work projects to be
voluntary. However, such State administered or State sponsored schemes
invariably depend on Benthamite incentives and disincentives, the balance
between which is constantly shifting. It may well turn out that, over time, the
carrots become thinner and less nutritious, and the sticks thicker and more
crudely crafted for belabouring. In any case, from a voluntaristic standpoint,
the manipulation of inducements and counter-inducements leaves only a little
space for moral choice, so it becomes difficult to determine whether actions
and behaviour are freely chosen or are enforced.
Promoting Participation
46
47
48
49
50
CHAPTER 12
N Douglas Lewis
If a society were to design an institution which had the job of finding the societys
set of moral principles and determining how they bear in concrete situations, that
institution would be sharply different from one charged with proposing policies
It would provide an environment conducive to rumination, reflection, and
analysis. Reason, not Power would be the motto over its door.1
PREFATORY REMARKS
Participation through politics is an ancient pastime, but during most of what
passes for modern civilisation, the judiciary has been seen as a necessary
antidote to politicians selling the pass. This is at least as great a likelihood as it
ever was, but as soon as participation is seen in an expanded context, the field
on which the judiciary can be expected to play must almost certainly expand.
If social and material well being is a pre-condition of effective participation in
various levels of community living, then it has to be guaranteed within the
framework of the constitution. The debate then becomes whether politicians
alone can be trusted to furnish the preconditions for participation, or whether
participation rights need a more institutional and far sighted degree of
constitutional protection. This is the battleground of law or politics.
The debate which this book is intended encourage should reawaken
discussion about the separation of powers, in particular, discussion about the
separation of judicial and (loosely) political functions. At one level, there is no
debate. The simple version of separation is accepted by the Universal
Declaration of Human Rights, the International Covenant on Economic, Social
and Cultural Rights, the 1995 Beijing Statement on Judicial Independence,
and, most recently, the Declaration on Judicial Independence of the Chief
Justices of the Australian Supreme Courts of the States and Territories.2 The
question is, rather, how separate is separate, and over what sort of issues must
the separation be observed? It is by claiming more for constitutions than has
been common in the past that old enmities are aroused and fierce debates
fired.
1
2
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3
4
5
Promoting Participation
The other side of the same coin is that the environment in which legislators
function makes a bias-free perspective difficult. The pressures are too great
and the opportunities for mature reflection on the long term over short term
advantage too restricted.
This does not, of course, foreclose the arguments about judicial as
opposed to simple legal autonomy. There is, perhaps, a case for some kind of
ombudsman or auditor replacing the traditional judge, but a rose by any other
name The crucial issue is establishing genuine independence from the body
politic, whether that be the executive or, in the British case, the executive and
6
7
8
Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics. Bickels
position is ultimately sceptical, but many of his arguments are of more than passing
interest.
Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics, pp 2526.
Ely, Democracy and Distrust: A Theory of Judicial Review, p 57.
216
its lapdog Parliament. The notion that Parliament can or should audit its own
constitutional conduct overall is unthinkable, in spite of the Blair
Governments partial incorporation of the ECHR. As they presently stand, this
incorporation constitutes a compromise over the issue at stake, in that the
judiciary will arbitrate on whether or not a breach of the ECHR has taken
place, yet will have no authority to strike down offending legislation.
Parliament will be expected to fast track remedial action. We shall see.
However, the Government might have unwittingly produced a mechanism
capable of giving teeth to second-generation rights. I shall return to this
shortly.
There seems, ultimately, to be little alternative to separately constituted
judges who do nothing else but judge, being the ultimate umpires of
constitutional interpretation. Ombudsmen and other auditors, for all their
many virtues, tend to mix their functions. They comment on administrative
systems, on efficiency, recommend reform and conduct systems audits. These
are all admirable, but they tend to blur the lines between the larger compact
and the conduct of politics and administration.
Without wishing to revisit the conceptual argument about the desirability
of judicial autonomy, it is worth saying a little at the purely descriptive level
about the contemporary nature of the political sphere. When Ely described the
legislative law making process in Congress, he surely was speaking to a
wider audience of political science students:
Much of the typical representatives time is consumed, not with considering
legislation, but rather with running errands (big and small) for his or her
constituents [and] much of the law is, thus, effectively left to be made by the
legions of unelected administrators whose duty it becomes to give operative
meaning to the broad delegations the statutes contain. The point is not that
such faceless bureaucrats necessarily do a bad job as our effective legislators.
It is rather that they are neither elected nor reelected, and are controlled only
spasmodically by officials who are.9
Promoting Participation
We may argue about who is best suited to adjudicate and what should be
the preferred method of their appointment.12 These matters are important but
of no ultimate consequence to the argument for judicial autonomy. What is
important, apart from the question of independence, is the job specification.
What is required of constitutional judges is a broad understanding of the
national culture, reinforced by comparative and international perspectives,
cross-cultural knowledge, philosophic grasp and the integrity necessary to
reinforce their essential independence. The rest can be left to the nature of the
office, which will develop its own culture, its own rigour and its own sense of
its position in the order of things.
This pinnacle office is not, after all, like most other careers. It is not about
money or empire or celebrity, although each of these might be an incidental
accompaniment. It is about judgment and about sagacity. The office holders
will want to be remembered for what they have contributed to the corpus; for a
doctrinal contribution. Being a judge is not like being a politician, where
ambition, vanity, power, even a willingness to improve peoples lot are likely
to be in play at some point. These are ideal types of the roles of judge and
politician, but as such they serve to differentiate their roles. Judging is about
preserving, upholding and refining the compact; it is about compact and not
combat.
The method of judicial appointment should reflect these concerns and
understandings, and there is no one correct method of appointment, save that
independence should be central to it. It does seem to follow, however, that
those appointing should not be, at least directly, of the political class and that
they should be chosen from amongst those who are neutral about everything
except the need to uphold the compact and the dignity of the office.
There have been many criticisms of judicial appointments being informed
by class considerations, by narrowness of cast of mind, and by immersion in
non-constitutional ways of thinking. By non-constitutional I mean things like
a commitment to Diceyean versions of the polity, in which politicians alone
should be entrusted with the power to propose and dispose. Any serious
consideration of the concept of the separation of powers must lead to a refusal
to accede to such constitutional surrender. No doubt we get the judges we
deserve, and if we believe we deserve better, then no doubt we shall find the
means of ensuring appropriate appointments are made.
One thing is worth adding, however, as a particularly personal reading of
the way the dice are cast. Even UK judges, not traditionally trained to think
public as opposed to private, usually acquit themselves with honour when
asked to move into the firing line of policy. I am thinking, in particular, of
12 It is important to note that the Labour Party has recently suggested that the House of
Lords Judicial might be augmented by three further lay members. They were
unsympathetic to creating a special constitutional court. Labour Party, Bringing Rights
Home: Labours Plans to Incorporate the European Convention on Human Rights into UK Law.
218
13 For US Federal practice in these matters, see Office of the Chairman, Administrative
Conference of the United States, A Guide to Federal Agency Rulemaking.
14 Wheeler v Leicester City Council [1985] AC 1054.
15 Bromley Borough Council v Greater London Council [1983] 1 AC 768.
16 Perry, The abortion funding cases: a comment on the supreme courts role in American
government.
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There may or may not have been significance in Graham Allens being
removed from the constitutional reform portfolio shortly after he wrote this,
but his intellectual arguments still carry weight. It is also important to
remember, that at least at one point in time, the Labour Party at large was
committed not just to upgrading and updating first generation rights, but also
to incorporating the second. The draft parliamentary Bill already prepared to
a detail hitherto unmatched (nb, three years ago) would, it is worth stressing,
include the right to association, the importance of which I have set out in
Chapter 1. However, the Labour Manifesto of 1997 contained only two
paragraphs relating to real rights for citizens and said nothing about social
and economic rights. The consultation paper already referred to merely
pointed out that the ECHR does not embrace issues of social and economic
rights which have surfaced in advanced industrial societies in the past two or
three decades. 21 Referring to the European Social Charter, opened for
signature in 1961, to which the UK Government is, of course, a party, as
having just surfaced perhaps tells us as much as we need to know.
At the time of writing, there is still no formal announcement from the
Government, but at the time of the Allen paper there was also clear agreement
on the need to establish a Human Rights Commission (HRC) charged with
monitoring citizens rights, providing advice and, in a limited number of
cases, supporting court action. This commitment was reaffirmed in 1996 and
hopefully will be implemented in the next year or so. In the light of the UKs
participation in the 1993 Vienna Conference on Human Rights, the 1996
Consultation Paper recognised the benefit of a new institution for the
promotion and protection of human rights. 22 It also supported the
establishment of a new Joint Committee on Human Rights of both Houses of
Parliament. Even so, the paper seems to show only limited enthusiasm for
concepts in which Allen himself clearly believed.
20 Allen, Labour and Rights: Stage 2 A British Bill of Rights, p 1 (emphasis in original).
21 Ibid, p 3.
22 Ibid, p 11.
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Allen again:
The ECHR is 40 years old and doesnt deal with freedom of information, data
protection, disability and discrimination. Similarly, it leaves out social and
economic rights The scope of the new Bill is so wide and of such historic
importance that every possible effort should be made to ensure that every
political party has the opportunity to participate in this historic
development.23
Leaving aside the issue of socio-economic rights for the moment, two points
stand out. The first is the reference to discrimination. As I have indicated in
Chapter 1, rights jurisprudence based on unqualified use of discrimination
could have the most significant repercussions, not just in terms of disability,
sexual preference and the like, but in terms of civic participation and
participation in material terms. When not unduly circumscribed,
discrimination partakes of the notion of equality, which is, of course,
potentially extremely far ranging. How far anti-discrimination jurisprudence
will be developed is a matter which, like so many others, will be determined
within the next couple of years.
The second point is the evident concern to gain as much consensus as
possible about constitutional reform. We have noted how this was achieved in
Canada through a nation-wide search for agreement. If a constitution is to
stick, it needs a degree of all-party, all-faction support. Before examining
Allens approach to the more problematic question of second generation
rights, however, let me briefly recap some of the main developments in this
field after the Second World War.
The two immediate post-war developments years were establishment of
the Federal Republic of Germany and the Constitution of India, both of which
I have referred to in Chapter 1. In varying degrees, both constitutions support
social market arrangements. In the Indian version, with its celebrated
directive principles, this has occasionally led to interventions which partake
much more of a larger notion of participative rights in all aspects of public,
and, to a more limited extent, private life. The German courts have not, for the
most part, been as expansive as the constitution would seem to permit them to
be, which cannot be said of the Indian judiciary. It may be argued that social
and political conditions in what is still an essentially Third World country are
no guide to the problems confronted by, say, EU countries. I am less than
convinced by this argument, but would settle, at this point, for indicating how
intellectually coherent the Indian constitution has proven to be, and how more
flexible procedural arrangements adopted by the courts can help to afford a
special status to new generation rights without undermining the electoral
process.
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The lack of specificity need not concern us. It is clear that, in spite of
everything, logic dictates that constitutions need courts at some point. It is
equally clear that we share Allens view that social entitlements could involve
potentially open-ended commitments which no Chancellor of the Exchequer
could countenance. But, it clearly is possible to steer a middle course as far as
some rights are concerned while conceding the overall premiership of the
judiciary, who must be seen as the ultimate owners of the constitution. What
is to prevent second generation rights being justiciable in the courts, yet with
Parliament having the final say on whether the offending legislation should be
amended?
It will be recalled that I am arguing that autonomy and participation,
alongside equality and non-discrimination and a range of directive
principles, should help the interpreters of the constitution when determining
individual entitlements. The judges must be given primacy in decisions
regarding civil and political rights and regarding certain rights to
participation in the political sphere and elsewhere. The matter may well be
different regarding, for example, social entitlements and the environment. An
important distinction must be made. It will still be for the courts to decide
whether, at the end of the day,26 there has been an infringement of rights. What
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226
CHAPTER 13
Patrick Birkinshaw
The separation of powers exists to prevent the rise of arbitrary executive
power.1
Steyn, The weakest and least dangerous department of government, p 87. See, also,
Stevens, The Independence of the Judiciary; Justice, The Judiciary in England and Wales; and
Bean (ed), Law Reform for All.
Vile, Constitutionalism and the Separation of Powers.
Unger, Law in Modern Society, pp 16681.
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4
5
6
Council of Civil Service Unions v Minister for the Civil Service [1984] 3 All ER 935 (HL).
M v Home Office [1993] 3 All ER 537 (HL).
R v Secretary of State for the Home Department ex p Fire Brigades Union [1995] 2 All ER 244
(HL). Cf R v Parliamentary Commissioner for Standards ex p Fayed [1998] 1 All ER 93 (CA)
and the general judicial refusal to interfere with Parliaments business under the Bill of
Rights 1689, Art 9.
This was the same Chancellor, Lord Mackay, who refused to introduce monitoring of
the performance of full time judges because such monitoring would interfere with
judicial independence. Malleson, Judicial training and performance appraisal: the
problem of judicial independence.
Purchass, Lord Mackay and the judiciary.
230
be referred to the Parole Board for consideration for release, has been
reviewed by the courts. Setting the tariff was found to be a function which the
Home Secretary had to perform in a judicial capacity and tariffs therefore
could not be set or retrospectively increased without reference to relevant
criteria. 9 There is a spirit of adventure in judicial decisions which has
perturbed the executive and caused the incoming Lord Chancellor to remind
judges of the limits to the proper conduct of their public duties. This is
perhaps not quite the stuff of Marbury v Madison,10 in which the US Supreme
court famously allotted to itself the power of judicial review of statutes
enacted by Congress, but it nevertheless is quite remarkable.
The views of Lord Woolf, Sir John Laws and others on parliamentary
sovereignty and the protection of fundamental rights are well known.11 Such
judges are certainly more inclined to debate the nature of parliamentary
sovereignty than is the New Labour Government, at least as is evidenced by
that governments White Papers on constitutional reform, which mount no
attack on the highest shibboleth of British constitutionalism.12
What the above all indicate is a powerful belief in the separation of powers
by the executive and judiciary, which each has seen the other undermining in
recent years, to the point where the judicial role may have to be reaffirmed in
order to protect the fundamental democratic values underpinning our notion
of government and rule. This chapter will ask what will be the role, if any, of
the separation of powers in a more participatory democracy?
R v Secretary of State for the Home Department ex p Pierson [1997] 3 All ER 577 (HL); and R
v Secretary of State for the Home Department ex p Venables [1997] 3 All ER 97 (HL)
concerning young offenders.
10 (1803) 1 Cranch 103.
11 Laws, Law and democracy; and Woolf, Droit-public English style.
12 This is especially true in the White Papers on Scottish Devolution and incorporating
the European Convention.
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16 Hugo Youngs Lord Irvine must not appoint the judges is a critical account of the Lord
Chancellors (Lord Irvines) tenure of office. Young describes how Lord Irvine sought to
remove the legal requirement that his departments permanent secretary should be
legally qualified, which removal would further buttress his, the Lord Chancellors,
powerful position in government. On the appropriateness of the Lord Chancellor sitting
as a judge, see HL Debs Vol 594 col 138, 20 October 1998. On judicial appointments, see
Home Affairs Committee, Judicial Appointments Procedures and the governments reply,
Judicial Appointments, Cm 3387.
17 On a recent German example, see Nolte and Rdler, German report.
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Executive effectiveness
If government exists for the benefit of the people and not simply for itself, it
has to be organised in a manner which enhances its efficiency and
effectiveness. The people may not be able to make the decisions but they
should provide government with information which it can use in order to
allow it to spend resources most effectively and to govern wisely. However
imperfectly, the Citizens Charter programme of the previous government
and the Better Government consultation exercises of the New Labour
Government seek to bring government and public services closer to the
people. However, the fact that, as of December 1997, government departments
could not communicate with each other via e-mail is an indication of how far
there is to go, although a Government Secure Intranet was launched in April
1998. A White Paper in March 1999, Modernising Government, set out plans for
greater use by government of information technology.
Participative deliberation
The legislature is the forum for deliberation of legislation and scrutiny of
government expenditure, policy and administration by representatives elected
to the assembly. The legislatures representative nature means that it has to
work on our behalf. We cannot all be there. But, to be properly representative,
and, therefore, to fulfil its role properly, the legislature requires information; it
should pass this information on to the public; and it should devise ever wider
programmes actively to sound out public opinion. The Government has
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collegium determining by vote, after discussion, where every stroke of the pick
should be made. The judicial method involving open discussion and an
adversary procedure before a jury could be used to determine important
questions of foreign policy and diplomacy. The results of allocating these tasks
of government to be decided in this way would undoubtedly be disastrous.
The present day procedures in Britain and the US, and the matters decided by
them, have not been evolved by chance; they represent the collective judgment
of centuries concerning the way in which certain things should be decided.
This is not an argument against all innovation, but it should lead us to enquire
into, and to examine the values which these procedures embody, and to look
very closely at new procedures, and at the allocation of tasks to them, in order
to be sure what we are doing.23
I do not think that any of this is new to anyone interested in law and
government. But, when focusing upon the developments we are discussing in
this book, viz, participation as a constitutional necessity and, in this chapter,
its relationship with the separation of powers, we ought to think about new
power centres distinct from, or developed from, existing power
configurations. These configurations can be regarded as horizontal or vertical.
I think the traditional separation of powers is best seen as a horizontal
configuration. Vertical configurations follow from a devolved allocation of
power, such as the model about to be implemented in the UK, or in a federal
model such as the US, or in the law making and decision making
arrangements of the EU under the doctrine of subsidiarity and Art 3(b) of the
EC Treaty (new Art 5). Their vertical nature does not remove the legal and
political problems about the appropriate level of government at which
decisions should be taken. After the Amsterdam Treaty, EU decisions are to
be taken not only as closely to the people but, also, as openly as possible.
GROWING INTERNATIONALISM
Another major impact on the doctrine of the separation of powers has been
made by the growing internationalism of law and politics which is all part of
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25 Van Gend en Loos [1963] ECR 1 and the important case law on sovereignty and
supremacy, direct effect, etc.
26 Sunday Times v UK (1979) 2 EHRR 245; Chalal v UK (1997) EHRR 413; and McCann v UK
(1995) The Times, 9 October.
27 Johnstone v Chief Constable of the RUC [1986] 3 All ER 135 (CJEC). Cf, Chalal v UK; and
McCann v UK; and Svenska Journalist Frbundet v EU Council [1998] All ER (EC) 620.
28 Kremzow v Republik sterreich (1997) The Times, 11 August; and Grogan [1991] ECR I-4685
(CJEC).
29 Opinion 2/94 (23 March 1996) (ECJ).
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Brind v Secretary of State for the Home Department [1991] 1 All ER 720 (HL).
[1997] 1 All ER 379 (CA).
In Hamble v MAFF [1995] 2 All ER 714
Eg, R v IRC ex p Unilever (1996) COD 421 (CA).
Eg, Saunders v UK (1997) 23 EHRR 313.
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I believe we have come an enormous way since the mid 1970s, when there
was a remarkable indifference to the consideration of the redress of grievances
other than by way of the courts, tribunals, ombudsmen and routine political
processes. The Citizens Charter brought the provision of effective internal
procedures for the redress of citizens grievances to the fore, and the Charters
Complaints Task Force working in the Cabinet Office, now succeeded by
Service First, came to see grievances as a valuable means of gaining
information about service delivery and failure. As well as being devices to
produce fairer outcomes to disputes, grievance mechanisms are essential
management tools from which to learn in order to improve performance.
Effective internal disputes procedures will not undermine the ombudsman,
no more than effective ombudsmen will undermine the courts. However,
there are some signs of tension between ombudsmen schemes and the courts.
The High Court has, for example, criticised a set of recommendations by the
Parliamentary Commissioner for not taking into consideration a failure by a
government department to remind a local authority of its newly acquired
powers to award compensation in cases of planning blight.40 Elsewhere, the
courts have instructed the local ombudsman to keep under constant review
the necessity of handing a complaint over to the courts where the latter might
award more appropriate relief. Furthermore, the chances of success before the
courts was not a factor that the ombudsman should consider in deciding
whether to take up a complaint.41
The most notable clash between courts and ombudsmen has concerned the
Pensions Ombudsman who took exception to the resort to technicalities by the
High Court to override his attempts to achieve more substantive justice in
complaints concerning pensions. Professor Farrands news release as Pensions
Ombudsman graphically illustrates the nature of the conflict between
different mechanisms for the remedy of grievances:
Unfortunately, the attitude of certain members of the judiciary has seemed
inimical to the Ombudsman idea. Alternative dispute resolution is supposed to
be different from the High Court. Ombudsmen should not be condemned for
being informal and inquisitorial rather than legalistic and adversarial. The
contrary attitude has appeared unfortunate in encouraging appeals where the
merits may be marginalised and technicalities triumph, notably where the
costs-risk precludes participation by complainants themselves.
42 See the press report of a case involving the London Borough of Merton in which
children could not bring proceedings to attack an authoritys reneging on terms to
which it had agreed in a planning agreement which affected them. Younge, Children
fail in High Court attempt to hold council to swimming pool plan.
43 R v Legal Aid Board ex p Donn and Co [1996] 3 All ER 1.
44 The Pergau Dam episode is the striking episode. R v Secretary of State for the Home
Department ex p WDM Ltd [1995] 1 All ER 611 (CA). The CAG does, of course, report to
the Public Accounts Committee of the House of Commons.
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246
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more open and whether such decision making is not inherently political and
largely best left to political and expert processes.48 The separation of powers
in its contemporary guise! My feeling is that judges, or at least judicial
techniques, have more to give in terms of collective decision making processes
and the proper balance between fairness and efficiency than they are given
credit by such jurists. The judges certainly have made great strides in
extracting reasons for the decisions taken by the executive in the performance
of its administrative and judicial functions, and are not so easily fooled by
legal nominalism as was an earlier generation of their brethren. 49
Nevertheless, the question remains whether contemporary judges and
lawyers are up to the job.
I do not think anyone seriously believes that judges who interface with
political forces in their work are card carrying class warriors suppressing
dissent and unpopular ideas. Most judges are aware of their own limitations
and the institutional biases of their occupation, and consequently that their
autonomy in any real sense is limited. But, if what we seek is greater
democratic participation, and any encouragement that legal process may give
to that participation, then we have to appreciate that the legal technique does
not cease once decision making stops being directly concerned with the
protection of individual rights and becomes embroiled with collective and
policy making procedures, and this is something to which new judges must
face up.50
My last point concerns the establishment of a body to oversee
administrative justice and the administration of justice. The latter might
involve the creation of a Ministry of Justice, for which Norman Lewis and I
have argued.51 In the USA and Australia, there is the experience of the
Administrative Conference of the United States (ACUS) and the
48 Dworkin, A Matter of Principle, ch 3.
49 See R v Secretary of State for the Home Department ex p Fayed [1997] 1 All ER 228 (CA); and,
particularly, R v Secretary of State for the Home Department ex p Venables; R v Secretary of
State for the Home Department ex p Thompson [1997] 1 All ER 327 (CA), per Lord Woolf MR,
for an imaginative approach to the duty to explain the motives behind the exercise of
official discretion. The fallacious argument developed by judges to prevent this area of
governmental responsibility being appropriately developed was exposed by Sir William
Holdsworth: I do not see why the fact that they are administrative should be a reason
why no reason should be given. They are decisions whether administrative or judicial.
Holdsworth Committee, Report of the Committee on Ministers Powers, Vol 2, Minutes of
Evidence, p 265.
50 On the question of participatory rights; rule making processes and the courts in the UK,
see R v Secretary of State for the Home Department ex p USTII [1992] 1 All ER 212; R v
Secretary of State for Foreign Affairs ex p WDM Ltd [1995] 1 All ER 611 (CA); R v Secretary
of State for Transport ex p Richmond LBC [1996] 4 All ER 903 (CA); R v Secretary of State for
Wales ex p Emery [1996] 4 All ER 1. For criticism by the Court of Appeal of attempts to
develop participatory procedures in the absence of statutory procedures, see Emery
(1997) The Times, 22 July (on appeal); and R v Secretary of State for the Environment ex p
OKeeffe (1997) The Times, 5 August. Cf, Bushell v Secretary of State [1980] 2 All ER 608
(HL). On the background issues, see Dworkin, A Matter of Principle, ch 3.
51 Birkinshaw and Lewis, When Citizens Complain: Reforming Justice and Administration.
248
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is linked to the redress of grievances.56 And there is no good reason why all
three branches of government, and the miscellaneous offshoots of
government, should not explain to us all more clearly, more openly and more
regularly how they exercise power, and in some cases, barter their public
responsibility, to advance the public our interest.
POSTSCRIPT
The extraordinary events surrounding the proceedings before the House of
Lords involving the immunity of General Pinochet from extradition came too
late for detailed comment. Institutionally, it did focus attention on the
desirability of the judicial committees of the House of Lords and Privy
Council as courts which will be asked to deal with increasingly demanding
questions of constitutional law and human rights. The shortcomings in Lord
Hoffmans position also reminded us of the undesirability of Law Lords
taking an active role in law making. Lord Hoffman was used by the
Conservatives to move amendments to the Bill of Rights 1689, allowing Ian
Hamilton MP to sue the Guardian for defamation.
56 Of course, some judges will know an infinite amount about particular processes
because of the accident of their practice in, eg, arbitration, tribunals and so on. The point
made here concerns training for all judges in other processes.
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CHAPTER 14
John Wadham
INTRODUCTION
The Governments Act to incorporate the European Convention on Human
Rights and Fundamental Freedoms (ECHR)1 is the most significant human
rights reform in the 60 years that Liberty has been in existence. For the first
time, positive rights such as privacy and family life, freedom of expression
and assembly, the right to a fair trial, freedom from arbitrary arrest, and
freedom from discrimination will be enshrined in domestic law, and those
who claim that their fundamental human rights have been breached will no
longer necessarily have to endure the expensive and lengthy process of going
to the European Court of Human Rights in Strasbourg.
Despite earlier fears that the Government might incorporate the ECHR in
a way which provided people with a weak form of human rights protection,
some of the concerns raised by human rights organisations and lawyers have
been addressed. The ECHR will apply to all public authorities performing a
public function, damages will be available for most of those whose ECHR
rights have been breached, there will be a duty on Government ministers to
certify compliance with the ECHR on new legislation, Statutory Instruments
will be subject to the ECHR, and the Government has announced the creation
of a Parliamentary Committee on human rights.
But the Act also brings with it a number of debates about how best to
incorporate the ECHR, the need for a Human Rights Commission, the
availability of legal aid and access to the courts, the need to include the
Protocols to ECHR, and even about the adequacy of the ECHR itself. The
ECHR will not be a panacea for all human rights abuses. Its age is clearly
discernible from the weakness of its equality provisions, and it is silent on
increasingly important issues such as the rights of children and standards in
prisons. The limitations it places on rights are too broad, and the anti-
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MISSING RIGHTS
There are a number of significant civil and political rights which do not
appear in the ECHR at all. Perhaps the most well known of these is the lack of
a right to information from public bodies. In addition, there are several other
missing rights, which clearly illustrate the need for a more up to date Bill of
Rights.
Discrimination
The right to freedom from discrimination contained in Article 14 is notably
weak. It does not refer to sexual orientation or to disability. And, unlike the
equivalent provision in the ICCPR, it applies only when another ECHR right
has been violated.
Self-incrimination
When considering the minimum standards which should be observed by the
criminal justice system, it is worrying to note that the ECHR does not contain
any equivalent of Art 14(3)(g) of the ICCPR. That is, that in the determination
of any criminal charge, a person shall not be compelled to testify against
himself or to confess guilt. There is also no right to jury trial under the ECHR.
Detention
Although there are restrictions on the lawfulness of detention in the ECHR, no
minimum conditions are set for conditions of detention except for the
provision against torture, inhuman and degrading treatment or punishment.
Other missing rights include the right of access to a lawyer and the right not to
be held incommunicado.
Children
Also absent from the ECHR are any specific rights for children, such as those
contained in the UN Convention on the Rights of the Child.
LIMITATIONS ON RIGHTS
Apart from wholesale omissions of important rights, there are considerable
gaps in the rights as provided by the ECHR. A few have been chosen to
illustrate the problems.
Lethal force
Whilst the right to life contained in Art 2 is protected by the condition that
actions breaching the right need to be absolutely necessary, the limitations
include allowing lethal force to be used to effect an arrest or to quell a riot.
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Sexual minorities
Article 12 of the ECHR includes a right to marry and found a family, but does
not provide such a right for transsexuals. Furthermore, it only allows
marriage between men and women, making no provision for partnerships
between lesbians or between gay men. Liberty believes that the case for going
beyond the ECHR in this respect is now overwhelming.
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nor only the property of the respectable. They are fundamental, universal and
inalienable. But, if a case concerned an unpopular group of people, like
suspected terrorists, travellers or protesters, or was controversial in some
other way, it is all too easy to imagine that a future government would be
reluctant to change the law. Human rights cases are often, by definition,
brought by people who are part of an unpopular minority, or are
controversial cases for some other reason.
Anxieties about the possible erosion of parliamentary sovereignty are
misplaced. Other countries have established systems which uphold both the
importance of human rights and the sovereignty of Parliament, and there is no
genuine obstacle to prevent the UK doing the same. In Canada, for example,
the courts either read in missing rights into the statute under consideration
or alternatively make it clear that, in the particular circumstances, part of the
statute no longer applies. Parliament then has the opportunity of either
cleaning up the statute to comply with the ruling or re-enacting the statute
and adding a clause stating that the provision applies notwithstanding the
contravention of the ECHR. This latter option then prevents the court from
refusing to apply that provision of the statute even if it does conflict with
human rights. Parliamentary sovereignty is, thus, preserved and
parliamentary accountability is enhanced by the need for the decision to
override rights to be clearly argued and debated. But, when Parliament has
enacted legislation in a rush, which is all too often the case, any unintended
consequences that might have resulted in violations of fundamental human
rights can be put right by the courts.
Parliamentary sovereignty would not be compromised by allowing the
courts to strike down legislation, as this very power would have been given to
them by Parliament itself, in limited circumstances, to provide a human rights
safety net. The European Communities Act 1972 is an example of such an
exercise of sovereignty which has worked successfully.
There is more at stake here than a theoretical debate for constitutional
theorists and lawyers, as a few examples will show.
have a clear right to argue that the Official Secrets Act has been altered by
incorporation of the ECHR and freedom of expression is something the jury is
entitled to consider when deciding whether or not to convict.
Politicians veto
The European Court of Human Rights has held that juveniles sentenced to
detention during Her Majestys Pleasure (for murder) must be provided with
real rights and that courts, not politicians, should decide when they should be
released. Some years before the European Court heard the case, the High
Court in this country was given the chance to resolve the issue but was not
able to do so because the ECHR was not part of our law. Under the proposed
model, the High Court will not be able declare the procedure unlawful;
instead it will be left in the hands of Parliament.
Assisted conception
Finally, Diane Blood wanted to have her dead husbands child but needed
access to his sperm. An Act of Parliament prevented access to sperm without
the donors consent. Parliament never properly considered this state of affairs.
If the courts had been able to consider the rules in the context of the right to
family life contained in Art 8 of the ECHR, the case might have been resolved
more quickly. Unfortunately, the Governments model might have forced the
courts to follow the letter of the law laid down by Parliament.
The Act provides that the specified courts may make a declaration of
incompatibility where they are satisfied that a provision of primary
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258
PUBLIC AUTHORITIES
The definition of public authority in s 6 of the Act is broad and open to
interpretation. It includes, but is not limited to, a court, a tribunal which
exercises functions in relation to legal proceedings, and any person certain of
whose functions are of a public nature. This definition of a public authority
does not include circumstances in which a person, though he or she is a public
authority for other purposes, is engaged in an act of a private nature.
The Act is clear in that it will be unlawful for public authorities to act in a
way which is incompatible with one or more ECHR rights. An act also
includes a failure to act. The only exception to this is where primary
legislation mandates such action and where that primary legislation cannot be
read or given effect in a way compatible with the ECHR.
All public bodies and all quasi-public bodies will now have to apply
ECHR standards. As the White Paper Rights Brought Home points out, these
will include central and local government, the police, immigration officers and
prisons. It will also include areas of activity which were previously within the
public sector, such as privatised utilities, and so would include companies
such as Group 4. These organisations are already susceptible to judicial review
under Ord 53 of the Rules of the Supreme Court.
The Act would also appear to include in its definition of a public authority
private organisations which are carrying out a function which would
otherwise be undertaken by a public authority, such as the Jockey Club. The
ECHR will also bite on mixed enterprises, that is, when a public enterprise is
not a statutory corporation but one where the Government owns shares in a
limited company. In relation to the latter points, the ECHR will apply only
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when the act concerned is of a public nature, not a private one. Therefore, it
will not necessarily apply to an internal grievance procedure, but would apply
to dealings with members of the public or membership of an organisation
such as the Jockey Club, if that membership was of a public character.
The effect of adopting the Strasbourg test as to who is a victim will be to,
to a certain extent, expand the categories of people who may bring
proceedings in the courts in this country, as the Strasbourg rules are wider
than the equivalent rules in the domestic courts. For example, it would not
ordinarily be possible in the domestic courts for a person to bring proceedings
on the basis that they are at risk of being directly affected by a particular
practice in the same way as such cases have been dealt with in Strasbourg.
However, in other crucial respects, to adopt the Strasbourg test would be
to restrict the categories of organisations who may bring public interest cases,
and therefore to reduce access to justice. For example, an applicant in judicial
review proceedings must satisfy the court that they have sufficient interest in
the case. In a series of cases in recent years, the courts have accepted that this
definition can include non-governmental organisations such as the Child
Poverty Action Group, 3 Greenpeace, 4 and the World Development
Movement5 in circumstances where there is no one individual in a position to
litigate a case raising important issues of public interest, but where a respected
non-governmental organisation (NGO) is able to do so. A second example is
the position of statutory bodies such as the Equal Opportunities Commission
(EOC). The House of Lords has held that the EOC may have standing to bring
cases challenging discriminatory practices, in view of its remit under the Sex
Discrimination Act 1975. The EOC consequently has successfully challenged
the Governments failure to implement European directives affecting part
time workers (a majority of whom are women).6
Despite the suggestion in the earlier Labour Party consultation paper
Bringing Rights Home7 that the rules of standing might be widened (or at least
maintained as they are), the Government proposes to reduce the scope of
standing to bring proceedings invoking the ECHR. Liberty believes that there
is no justification for such a retrograde step and that it is essential that
statutory bodies such as the EOC, and NGOs, continue to be able to bring
proceedings in the circumstances already established by the High Court. Such
organisations can play a vital role in bringing matters of important public
interest before the courts. The proposals would mean that an organisation
such as the EOC would have standing to bring proceedings in a case in which
domestic and/or European Community law was invoked, but not if the ECHR
were invoked. That would be a nonsensical situation. It cannot be justifiable
3
4
5
6
7
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262
emotional distress and anxiety). These principles are very similar to the
principles applied by the domestic courts in deciding the amount of damages
in tort.
One consequence of incorporating the Strasbourg compensation test is that
a court which finds violations of both the ECHR and domestic statutory or
common law arising out of the same incident in the same case may have to
consider different tests in awarding damages. For example, a case concerning
a persons arrest, detention and treatment by the police could be argued on a
number of grounds, such as a breach of provisions in the Police and Criminal
Evidence Act 1984 and Art 5 of the ECHR (right to liberty and security of the
person). Were a court to find a violation of both the 1984 Act and Art 5,
different considerations would apply as to how to decide the level of damages
to be awarded. Awards in Strasbourg have been relatively infrequent and
lower than comparable awards might have been in our domestic courts.
Indeed, the European Court will not infrequently find that the finding of a
violation of the ECHR is in itself just satisfaction for the applicant.
An example will help to illustrate the problem. A recent Court of Appeal
case laid down guidelines for awards of damages in false imprisonment
cases.8 In that case, 500 was suggested as compensation for the first hour of
imprisonment, continuing on a sliding scale to 3,000 for the first 24 hours. In
addition, the Court of Appeal advised that exemplary damages of 25,000
could be awarded in deserving cases (with a usual maximum of 50,000). In
contrast to this, in the case of Stanley Johnson,9 the European Court found that
Mr Johnsons detention in a psychiatric hospital between June 1989 and
January 1993 violated Art 5(1) of the ECHR. Mr Johnson was awarded 10,000
in non-pecuniary damages. Whilst these two cases of course concern very
different circumstances, they do illustrate the difference in approach in
determining what are considered to be suitable levels of damages.
Although it is the Governments intention that this Act will provide all the
mechanisms necessary for effective remedies, the inclusion of Art 13 itself
8
9
Thompson v Commissioner of Police for the Metropolis; and Hsu v Commissioner of Police for
the Metropolis [1997] 2 All ER 762.
(1997) unreported, 24 October.
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would have ensured that the courts could assist with this process and could
fill in any unintended gaps when necessary.
The same argument applies for Art 1 of the ECHR although the wording
makes it difficult to apply directly. Article 1 states:
The High Contracting Parties shall secure to everyone within their jurisdiction
the rights and freedoms defined in Section 1 of this Convention.
NEW LEGISLATION
The Human Rights Act requires that declarations of compatibility with the
ECHR be made by a Minister in charge of any new Bill. The Minister either
must make a statement that the Bills provisions are compatible with the
ECHR or make a statement that, although he or she is unable to make a
statement of compatibility, the Government nevertheless wishes the House to
proceed with the Bill. Either statement must be in writing, although it is up to
the Minister to decide what manner he or she considers to be appropriate.
Liberty welcomes the principle behind s 19, however, we consider that it
requires considerably more detail and certainty. Liberty proposes that a
human rights impact assessment of all legislation (primary, secondary and
delegated) should be introduced. A Human Rights Impact Assessment would
require the relevant Minister to ensure that the proposed Bill or policy has
been scrutinised for conformity with the ECHR and, when relevant, other
10 The first of these concerns minority rights and the second a new improved antidiscrimination provision modelled on ICCPR, Art 26.
264
CONCLUSION
The Human Rights Act is a highly significant reform which will bring
enormous benefits regardless of how its incorporation is achieved.
Parliamentary sovereignty will undoubtedly be upheld, whatever reforms are
brought in. The challenge is to identify a way of ensuring that parliamentary
sovereignty is maintained, and maybe even enhanced, by providing
additional opportunities for Parliament to hold the Executive to account. If
such a challenge were met, it would improve both individual rights and the
quality of democracy.
The UKs human rights record is not as one would expect from the worlds
oldest democracy. We may not witness the torture and extra-legal killings
usually associated with human rights abuses overseas, but, nevertheless, not
only has Amnesty International had cause to raise concerns about the UKs
record with regard to Northern Ireland, criminal trials and the treatment of
refugees and asylum seekers, but we have one of the worst records of any
country in Europe in the European Court of Human Rights.11 The UK is also
without a written constitution, highly unusual amongst modern democracies,
and, in addition, the legislature does not embrace the concept of rights. In
their place, we have privileges, these being any actions not expressly
proscribed by law. As such, there are no identifiable and enforceable positive
11 Up to the end of 1997, the Court had upheld violations in 50 cases against the UK.
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human rights to protect the people of this country. At present, and until the
Human Rights Act currently before Parliament is enacted, our rights exist
only to the extent that they have not been taken away by the courts or, more
frequently, by Parliament. They exist only in the silence of the law.
The incorporation of the ECHR into domestic law will begin to redress this
situation. However, both the ECHR itself and its manner of incorporation are
far from perfect solutions. The introduction of a full constitutional Bill of
Rights would guarantee those rights which the UK has already agreed to
uphold in international law and introduce a recognised culture of rights into
society.
That a Bill of Rights would give considerable new powers to the judiciary
has given rise to concerns among some who would otherwise support a Bill. It
is arguable, therefore, that a constitutional Bill of Rights should not be
introduced without the reform of judicial appointments that would remedy
the unrepresentative nature of the present judiciary. The constituency from
which appointments are currently made should be broadened, allowing
solicitors, barristers and academic lawyers to be appointed to all courts. A
modern appointment and promotion system should be adopted, which would
include public advertising of posts, shortlisting and interview. This would
serve to create a more accountable system and allow for the implementation
of an equal opportunities policy.
266
CHAPTER 15
Mary Seneviratne
INTRODUCTION
This chapter examines the arguments for developing socio-economic rights for
citizens, and the philosophical and practical implications of doing so. The
theme of this book being participation, the argument of this chapter is that
unless citizens have access to the good things in life, they will not be able to
participate effectively in citizenship. Aside from participation, there is also an
argument that the right to well being is itself a basic human right which the
constitution ought to guarantee. Two questions arise here: first, does the
widening of participation require some kind of redistribution of material
resources and, secondly, is the creation or recognition of rights an appropriate
way of doing this?
What, then are social and economic rights? They include rights of access to
housing, health care services, sufficient food and clean water, social security
and education. They are not just rights to the basic necessities for sustaining
life (food, clothing, shelter), but also to the means of improving the capacity to
achieve ones full potential, and, thus, include a right to education and to
effective opportunities for productive employment. They are sometimes
referred to as second generation rights, which derive from the growth of
socialist ideas in the late 19th and early 20th centuries, and as such, they are
distinguished from the first generation civil and political rights which are
associated with 18th century notions of the rights of man.1 While there
appears to be some measure of agreement about the justification for the
traditional civil and political rights, the right to social and economic well
being is not universally accepted. Even where such rights are accepted, the
method of enforcement is often considered problematic.
Promoting Participation
Cockrell, The South African Bill of Rights and the duck/rabbit, p 529.
Robertson and Merrills, Human Rights in Europe, p 349.
Dowald-Beck, A duty in international law to provide for basic needs, p 44.
Lewis and Seneviratne, A Social Charter for Britain, pp 3137.
268
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7
8
9
10
11
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there are costs involved in sustaining police forces, courts and prisons. He
anticipates the counter-argument, that enforcement is a more incidental
feature of civil and political rights whereas costs are intrinsic to social rights,
by arguing that an enforcement mechanism, and therefore the costs of
enforceability, are intrinsic to all sorts of rights, not just social ones. Thus, civil
and political rights become positive rights to resources because of the costs of
enforcement. He also argues that, like social and economic rights, society,
through political processes, decides what level of resources to allocate to the
police service and other enforcement mechanisms, just as there are political
negotiations about the level of resources allocated to health care or education.
Fried, too, points out that, although negative rights, being essentially
about being left alone, are not a scarce or limited commodity, they are not
costless, in that resources are needed to enforce them.19 In addition, not all
civil and political rights are negative. For example, the right to a fair trial is not
concerned with being left alone, nor is the right to vote. Sadurski sees no
reason, therefore, to limit the notion of rights only to those which are
correlated with negative duties,20 and sees nothing in the concept of a right,
or in a general theory of rights, which confines the notion of rights only to
those rights which are coupled with the negative duties of non-interference.21
The differentiation of rights into negative and positive categories does not
provide a reliable test for the notion of a right, and there may be an argument
for saying that the boundary between negative and positive rights often
becomes blurred.22 For example, the right to a good education may be seen as
a positive right, but it could also be seen as an essential component of free
speech, since without it, citizens are not able to communicate their opinions to
others effectively.23 Similarly, a right of subsistence may be a positive right,
but it may also be interpreted as a right of non-interference, which would
ensure, for example, that agricultural land was not used for purposes which
would prevent its being used to provide the staple diet of a rural
community.24
It is, then, implausible to deny that socio-economic rights are not proper
rights simply because they are positive and require the allocation of scarce
resources. Fried has argued that if there are rights at all, then there are positive
and negative ones. What may need further elaboration is the moral basis on
which rights are grounded, but the case for negative and positive rights
stands or falls together.25 Craven has pointed out that it is not universally
19
20
21
22
23
24
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agreed that the natural law tradition, with its emphasis on individual freedom
and autonomy, did in fact provide a coherent philosophical basis for the
modern notion of a human right.26 The collectivist values inherent in social
and economic rights are thus not in conflict with modern ideas about human
rights. Social and economic rights, being essentially contingent on resource
allocation, may, to a large extent, be of a different order to civil and political
rights. This does not mean, however, that there is no case for socio-economic
rights.
26
27
28
29
30
31
Craven, The International Covenant on Economic, Social and Political Rights, p 11.
Gerwirth, Economic justice: concepts and criteria, p 7.
Rawls, A Theory of Justice, p 62.
Dworkin, Taking Rights Seriously.
Tunc, The quest for justice, p 350.
Ibid, Gerwirth, p 7.
272
implications for social policy and the relation between freedom and
equality.32
Douglas Lewis and myself base our discussion about the introduction of a
Social Charter in the UK on a belief that people have basic rights to well being
and to share in the nations prosperity. 33 Such rights are backed by
international obligations. These rights are seen as a necessary condition for
self-fulfilment and expression, on the basis that it is difficult to express ones
personality or make free choices if one is economically deprived.34 If there is
general agreement that individuals have rights to self-determination, the right
to well being becomes an aspect of this. JK Galbraith has noted that Nothing
sets a stronger limit on the liberty of the individual than a total absence of
money.35 At a simple level, this can be expressed as beggars cant be
choosers.
Plant considers that welfare is a basic human right which should be
ranked alongside other rights such as the right to life, liberty and property. He
argues that welfare institutions are central to the moral legitimacy of
government in the same way as are institutions which protect civil and
political rights.36 He bases his justification for social and economic rights on
the interrelationship between liberty and ability or power. The value or worth
of liberty is that it allows individuals to do more of what they want to do, and,
therefore, being enabled to do something is interrelated with the concept of
liberty. Thus, liberty requires resources which secure the same kind of value
for liberty for each individual. All human beings require a class of basic goods
which are a necessary condition of agency, and which should therefore be
protected in terms of rights. These basic needs are more than is necessary for
mere survival, and must include some element of a worthwhile life, or
physical well being. This would therefore include not only food and shelter,
but also healthcare, and education, which ensures an individuals capacity for
choice and effective functioning.37
Sadurski justifies socio-economic rights on the basis that all human beings
have certain basic needs. If these are not satisfied, an individual cannot subsist
and participate meaningfully in social life.38 This approach is adopted by
Shue, who sees social and economic rights as essential conditions for the full
enjoyment of civil and political rights, since No one can fully, if at all, enjoy
any right that is supposedly protected by society if he or she lacks the
32
33
34
35
36
37
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essentials for a reasonably healthy life.39 The argument is, therefore, that
freedom and autonomy can only be made meaningful if an individual also has
a certain degree of material security. Freedom of expression is of little value,
for example, if one is starving, but, as Craven points out, this is a limited
justification, as material security only has an instrumental value, and is
relevant only in so far as it contributes to individual freedom and the
enjoyment of civil and political rights.40
Gewirth argues that social and economic rights have a more than
instrumental value. They are inherently valuable in so far as they relate to
fundamental elements of the physical nature of human beings, which includes
their ability to enjoy social goods.41 Gewirth makes the case for such rights on
the basis that every agent must logically hold or accept that he or she has
rights to freedom and well being, and must accept that others have these
rights equal to her or his own (that is, that every person has equal rights to
freedom and well being). 42 as the necessary conditions of action and
successful action in general.43 For Gewirth, basic needs and the protection of
liberty are not fundamentally distinguishable, and these basic human rights
can be shown to follow logically from the generic requirements of consistency
in action.44 Whether one bases ones reasoning upon Gewirth or upon the old
maxim do unto others as you would have done to you, such a stance has
implications for social and economic justice and the distribution of social and
economic goods.
It could be argued that the market is the only mechanism of exchange
which is needed, as it is the most effective way of distributing social and
economic goods. The market may be considered to be a superior mechanism
for distribution because it is based on consumer choice, and economic selfinterest may be the most efficient way of ensuring that citizens have a share in
the nations prosperity. Moreover, the argument is that any interference with
the market is a threat to liberty and ought to be resisted. In other words,
redistribution of social and economic goods distorts the market, and therefore
is unacceptable. The driving force of this model is a commitment to individual
choice as a means to self-determination. There is recognition that some
essential services, education and health, for example, must be available to all,
irrespective of means, but even welfare policies should promote choice as far
as possible, and exist only to provide a safety net for those who are incapable
of choosing to help themselves. Free choice in the market is, thus, seen as the
most effective way of empowering individuals.
39
40
41
42
43
44
But, the market is not necessarily the most efficient, nor, indeed, the most
fair, way of exchanging economic and social goods. The model does not
acknowledge the inequalities already existing in society, except insofar as
there seems to be a belief that inequality may be a fair price to pay for freedom
to choose. There is no acknowledgement that some individuals might require
protection from unfettered market forces. One may accept that the market
system provides a large range of consumer goods abundantly and efficiently,
but, as Galbraith notes, there are some things which cannot be left to the
market system, and in the good society, these will be the responsibility of the
State.45 By way of example, he cites good, low cost housing, which the market
system does not provide. Given that few things are more visibly at odds with
the good society than badly housed or homeless people, the provision of such
housing is of prime importance and must be a public responsibility.46 Health
care for the needful must also be a public responsibility.
Gewirth, too, casts doubt on the classical free market system model as a
sufficient criterion of economic justice. He doubts whether the so called
freedom of choice guaranteed by the market can be upheld, given the
complexities of the productive process and the difficulties of discovering
whether an individuals abilities to take part in the productive process are
derived from themselves or from a complex prior matrix of inheritance and
social nurture, including education. He also questions the quality of
freedom which is based on economic necessity.47 In other words, we are not
all coming to the free market as equal players, and this inequality is not
necessarily (indeed, in most cases, not at all) the outcome of our own action or
inaction. Furthermore, the market system does nothing for those who do not
participate in the productive process at all, or who do participate, but only to
an extent that does not enable them to fulfil their basic needs.48
The argument for distribution by means other than the market is,
therefore, that increases in overall prosperity do not guarantee that all citizens
will share in that prosperity. The private enterprise economy does not meet all
individual needs. Indeed, it can be argued that self-interest can be selfdefeating, and that on many occasions the rational choice for each individual
is to act collectively as it is only by acting with others that individuals can
improve their individual welfare.49 Although living standards in general may
improve under a market economy, it does not necessarily follow that all
citizens enjoy greater social and economic prosperity than they did before.
National economic growth, under a market economy, can mean profits for
45
46
47
48
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companies, but the existence of millionaires does not necessarily translate into
benefits and prosperity for all citizens. The trickle down effect has been
largely illusory.
Increased wealth in a country does not of itself improve the access of the
poor to basic social and economic rights, and it may in fact diminish access.
Increases in gross national product usually are unevenly distributed, and the
gap between the rich and the poor consequently widens. The market economy
may lead to an overall growth of the economy and an increase in the
availability of material goods to the average citizen. But, it can also lead to an
increase in human misery in terms of the increase in pollution, workplace
hazards and an increase in inequality. The market system may therefore
encourage wealth creation, but, if it is accepted that prosperity needs to be
shared, it is implicit that there has to be some redistribution. In order to ensure
the social and economic well being of all citizens, some mechanism, other than
the market, is needed to distribute certain goods and services and ensure
access to resources.
Even when this is accepted, there is still the question of what goods and
services need to be redistributed, and the basis of that distribution. Many are
content to argue for equality of opportunity rather than equality of outcome.
So, for example, there is an argument that there is no need for wealth or
property to be equalised, but rather that, beyond the minimum requirement
for basic goods, people should have as nearly as possible equal chances for
developing and utilising their own capabilities for successful agency. 50
Equality of opportunity does not necessarily produce an egalitarian society,
although it can go some way to minimising inequality of outcomes. It reduces
inequalities, rather than producing equality. Hutton has argued that the
Welfare State has to address inequalities in income and wealth because these
result in inequalities in power, and, thus, mean that freedom is qualified.51
Also, in order even for there to be sufficient equality of opportunity, there
must be a certain redistribution of income and wealth. One method of
achieving equality of opportunity and equality of outcome is by employing
the language of socio-economic rights.
WHY RIGHTS?
The discourse of rights has emerged, internationally as well as nationally, as
an appropriate way of ensuring access to resources. As we have seen, the
Universal Declaration of Human Rights proclaims that there should be, inter
alia, a right to social security, a right to work, a right to rest and leisure, a
right to education, and a right to freely participate in the cultural life of the
community, to enjoy the arts and to share in scientific advancement and its
benefits. Modern liberal thought is very often expressed in terms of rights,
and their appeal is compelling in that they represent the idea that there is a
higher order law to which even Parliament is subject.52 Thus, minorities, and
others who cannot protect themselves adequately through the democratic
process are protected by Bills of Rights, and certain subjects are withdrawn
from the vicissitudes of political controversy, to place them beyond the reach
of majorities and officials and to establish them as legal principles to be
applied by the courts.53 Minogue also notes that rights are valuable because
of their purchase upon some superior source of authority, beyond the hazards
of shifting political judgment.54
The appeal of the rights discourse is not lost on political parties. The
previous government introduced the Citizens Charter, which was based on
an implication of the ideology of free choice that people had rights to be
informed and choose for themselves on the basis of that information. The
Charter aimed to set out a new standard for the delivery of quality in public
services, and the way to achieve this was to publish performance targets and
information on standards, introduce complaints procedures and inspectorates,
and provide better redress for aggrieved citizens. It is sometimes forgotten
that the Labour Party also published a Citizens Charter in 1991,55 just days
before the, then, Conservative Government published their White Paper. The
Labour Party, too, believed that consumers needed rights to protect
themselves, and that as citizens they needed powers to have these rights
enforced.
Although using similar rhetoric, Coote notes the different messages
propounded by the two parties. Labours Charter was to give consumers and
citizens nine practical rights in their dealings with companies, public bodies
and central and local government. There was to be not only a right to choice,
quality, swift and fair redress, information, and some say in decision making,
but also rights to safety, equal treatment, citizens action and advocacy. The
Conservatives, on the other hand emphasised privatisation, wider
competition, further contracting out, and performance related pay.56 These
differences seem to embody the difference between being a consumer and
being a citizen, and, as Ranson and Stewart note, a concept of organisation
that encompasses citizens differs from an organisation that knows only
52
53
54
55
56
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57 Ransom and Stewart, Citizenship and government: the challenge for management in
the public domain, p 5.
58 Ibid, p 12.
59 Coote (ed), The Welfare of Citizens, p 4.
60 Ibid, p 6.
61 Plant, Citizenship, rights and welfare, p 27.
62 Ibid, p 28.
278
63
64
65
66
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duty within that community.67 The thrust of these views is that the discourse
of rights may result in an individualistic approach, which is out of keeping
with a society that seeks to ensure the well being of all. It may be that rights
discourse helps to perpetuate the cult of individuality, and panders to the
pursuit of self-interest. In addition, as well as fostering individualism, charters
of rights may have the effect of entrenching inequalities which already exist in
society. At another level, Minogue argues that socio-economic rights discourse
obscures the real issues, which are whether transfers of wealth ought to
happen, and if they ought, by what means.68
Ison points out some of the dangers in using charters of rights by
concluding that the Canadian Charter of Rights and Freedoms has
undermined rather than promoted the values which it purports to embody.
Rather than adopting the orthodox view, that such charters offer protection to
citizens, he concludes that the Charter is counter-productive because it is
based upon a conception of the State which does not accord with
contemporary reality. The main threat to liberty is not from elected
governments, but from agencies such as business and multi-nationals, and the
Charter does not reflect, or even accommodate, the perception of elected
governments as the only hope that most people have of protection from those
who really wield power.69 The Charter, being based upon a perception of a
people whose liberties may be threatened by the power of elected
governments, 70 actually helps to disempower citizens, as it is used by
business to defeat and delay legislation which may be in the interests of the
wider community. For example, pollution control has been held to be
unconstitutional.
The major difficulty perceived by some commentators in establishing
rights to social and economic well being is that of framing social and economic
entitlement in terms of rights since the allocation of scarce social and
economic resources has to be a political matter. Indeed, for Minogue the very
aspects of rights which make them valuable, the fact that they make a claim to
a superior source of authority, beyond political judgment, is what makes
socio-economic rights problematic.71 These rights refer essentially to political
questions. Laws too, draws a distinction between positive rights, which are
the stuff of political debate, involving, as they do choices between education,
health, defence, and many other goals, and the traditional, negative rights,
which set minimum standards. While there is general agreement about civil
and political rights, there can be much disagreement between decent and
67
68
69
70
71
honourable people, in deciding how best to promote opportunities of selffulfilment, which will necessarily involve hard choices.72
The argument, then, is that these matters cannot be rights because, being
political issues, they are not justiciable, and therefore cannot be enforced in the
same way as other legal rights. What is it about these kinds of rights which
make then not susceptible to legal challenge? LL Fuller has argued that there
are three methods of resolving disputes: political, managerial, and judicial.
Political and polycentric disputes are not capable of resolution by the courts,
and should be left to political processes or to administrative discretion as
appropriate. Fuller uses a football game to illustrate the point, in that there is
no correct way to position players during a game, but it has to be a matter of
judgment, and any change in position of one player would have consequences
for the rest of the team.73 Many of the disputes which arise in respect of socioeconomic rights would be classified not as political but as polycentric, in the
sense that they have a number of interconnected, linked issues. The result is
that, if one aspect of the matter is changed, it results in unpredictable
consequences for other aspects. Despite involving, as they do, the allocation of
limited resources, socio-economic rights are polycentric rather than political
because of the complexity of the issues involved, and the unforeseen
consequences of making a change to one aspect of the allocation process.
The courts are understandably wary of entering such a minefield. In a
recent case concerning the extent of a public bodys liability for negligence, the
judges refused to recognise that the local highway authority had a duty of
care in the circumstances of the case, even on the grounds of irrationality in
failing to exercise a power, on the basis that this would inevitably expose the
authoritys budgetary decisions to judicial inquiry, and distort the priorities
of local authorities, which would be bound to play safe rather than risk
enormous liabilities for personal injury accidents.74 Convery notes that to
find liability in such cases could be seen as indirectly confining the discretion
of public authorities to decide how best to fulfil any number of competing
statutory calls on their limited budgets,75 in addition to opening up a drain
on resources which are already overstretched.76
It is no easy matter to adjudicate in areas of polycentricity even where
basic rights and freedoms are concerned. For example, in a recent case
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concerning the export of live animals,77 the Court of Appeal refused to accept
that the chief constables policy of restricting police protection to exporters to
two days each week, and preventing exports at any other time, was
unreasonable in the sense defined by Lord Greene MR in Associated Provincial
Picture Houses Ltd v Wednesbury Corporation.78 The policy decisions of senior
police officers are susceptible to judicial review, but in this case the judges
were unwilling to override the judgment of the Chief Constable on how best
to deploy his resources. The fact that the decision of the Chief Constable was
based on local and resource considerations was effective in undermining the
rigour of judicial scrutiny, with the Tight and relatively inflexible budgetary
constraints under which chief constables are obliged to operate providing a
deterrent to judicial intervention.79 Any judicial intervention would have
had implications for resources, which would have had an impact on other
areas of policing activities in the county.
In a case arising from the refusal of a health authority to fund expensive
medical treatment, the Master of the Rolls spoke of the Difficult and
agonising judgments which had to be made about how best to allocate
limited budgets to the maximum number of patients, concluding that it was
not a judgment that the court can make.80 There is, therefore, a serious issue
to be addressed about the enforceability of these rights, but this does not
invalidate the basic human right to well being. Some may argue that a right
which is not legally justiciable is not a right, but on the other hand,
justiciability is merely one of a number of ways to verify a human right.81
Social and economic rights may not be capable of direct enforcement, but that
is not to say that they are meaningless.82 It is the question of enforceability
which will now be addressed.
rights is what mechanisms can be used to make them effective. Without these
mechanisms, they could be seen as, at best, bland statements of intent, and, at
worst, a sham.
Questions of enforceability cannot be divorced from the actual content of
socio-economic rights. Even in the context of civil and political rights, where
the fundamental importance of human rights is almost universally
recognised, the nature and content of those rights is not.83 How much more
difficult it is to determine the nature and content of social and economic
rights, particularly when these are set against a background of scarcity.84 At a
general level, the rights can be expressed in the same terms as those used in
international treaties and charters: social security, healthcare, food, clothing,
housing, and education. Of course, at one level, these can only be delivered if
there is economic prosperity and the political will to do so. But, the whole idea
of using rights discourse is to claim that they should not be granted as a result
of political doctrine, but as an aspect of citizenship, and that, whatever the
level of economic development, there is a commitment to sharing what
prosperity there is fairly between citizens, or at least recognising that sharing
as a principle.
The difficulties of establishing and making meaningful the enforcement of
socio-economic rights should not be underestimated, and judicial enforcement
may not be appropriate. In any case, some of the decided cases illustrate a
reluctance on the part of judges to become involved in decisions about the
allocation of resources, based on the belief that this is an area in which
constitutional responsibility rests on the shoulders of our elected politicians,
and that in relation to positive rights, Parliament is necessarily and rightly
supreme. 85 Judicial supremacy may not achieve desired outcomes, as
Canadian experience has shown. In this context, Beatty has concluded that the
judges have not used the Charter of Rights to hold politicians and public
officials to account,86 and that the extent to which human rights are protected
in society depends, more than anything else, on the way judges are appointed
to its courts.87 If judges are to be the primary control mechanism, what
effective control is there to be against judicial tyranny? Of course, whether one
is more concerned about this than Parliamentary supremacy depends,
according to Blair, on whether one would prefer to place ones trust in the
integrity of the judiciary rather than the imperfections of the political process;
or whether one prefers to trust in a government accountable through the
ballot box rather than a judiciary which is unrepresentative, unelected and
83
84
85
86
87
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virtually irremovable.88 I agree with her that, given this conflict, we are really
looking for safeguards and checks and balances.
Judicial intervention on the substantive issue, that is, in the allocation of
resources, is inappropriate. This would allow to the judges too much power
and an influence in areas where they are ill equipped to make the necessary
judgment. Nor is there any evidence that the judges are eager to become
involved in the function of distributing resources. In fact, the evidence is to the
contrary, and judges accept that most aspects of these matters are best left to
the discretion of the body entitled to make the decision. For example, in the
Stovin case, Lord Hoffman was clear that the timing of the necessary work to
be performed by the highway authority, and the budgetary year in which the
money was spent, was surely as much a matter of discretion as the decision in
principle to do it.89 Provided the authority has exercised its discretion in the
correct manner, the courts will not, and ought not, to interfere.
It is this aspect of judicial intervention, the procedural aspect, which holds
the key to the effective enforceability of social and economic rights. Given the
complexity of the decisions about the allocation of resources, given that these
must in essence be matters of political judgment and managerial discretion,
the better approach in this area is that of overseeing that decisions are taken
correctly. As these rights cannot be absolute rights, fair procedures are crucial
in determining who is to be given the resource.90 If social and economic rights
become enshrined in the constitution, judicial scrutiny should consist of
ensuring that there is effective scrutiny and fair procedures in relation to the
delivery of these rights.
By way of an example, let us examine the supposed right to housing. This
is enshrined as a basic human right in the Universal Declaration of Human
Rights in 1948, and is provided for in the International Convention on Social
and Cultural Rights, which recognises the right of everyone to an adequate
standard of living, including housing. One of the primary human needs is that
of shelter, and, in any developed legal system, there should be provision by
the State of accommodation for those unable to provide it for themselves.91
The implementation of this right could involve considerable public expense,
and decisions have to be made about the nature of the obligation. Even if it is
decided that accommodation should only be provided for those in genuine
need, should the obligation be reserved for those without any shelter at all, or
those in unsatisfactory accommodation?
88 Blair, Discretion and Rights: Political Power and Judicial Control, p 16.
89 Stovin v Wise (Norfolk County Council, third party) [1996] 3 WLR 388, p 417, per Lord
Hoffman.
90 Galligan, Rights, discretion and procedures, p 155.
91 Coombes, The duty to house the homeless, p 53.
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The result of this is that all children are given the opportunity to be
educated, irrespective of the wishes of their parents, or their own wishes, and
this ensures that they have the opportunity to partake in what society has to
offer. Elaborate procedures are in place to ensure that schools are provided,
that an adequate supply of teachers are trained, and that the curriculum is
delivered. Local authorities know how many children in their area need a
place at school and have to ensure that education is provided. The
enforcement of this right at an individual level does not interfere with the
discretion of the local education authority to provide suitable education. Thus,
despite legislation in relation to parental choice, parents cannot insist on a
place at a particular school for their child. The implementation of this right,
which is really on a right to express a preference, is that there are procedures
in place to ensure that decisions about such matters are decided fairly, and
that there are rights of appeal.
What is appropriate, then, in the enforcement of social and economic
rights, is that there should be procedural fairness in decision making in these
areas. Moreover, laws and practices should be interpreted on the assumption
that these basic rights are not to be infringed. In this context, a recent report of
the Ombudsman of the Republic of Ireland has some interesting features. This
concerned an investigation into three separate complaints arising from the
refusal of the department to pay full arrears of pension to complainants who,
for various reasons, were late in making their claims. In reaching his decision
that the department should pay the arrears, the Ombudsman stressed that the
decisions of the department should serve to support and foster the principles
upon which social insurance is based.94 Furthermore, he felt that the loss of
arrears was a disproportionate sanction.
The doctrine of proportionality does have an important role to play in the
context of social and economic rights. This doctrine provides that there must
be a reasonable relationship between the severity of the sanction and the aim
which the imposition of the sanctions seeks to achieve.95 In the context of
socio-economic rights, it would operate to ensure that any decision which
appeared to be in breach of one of the fundamental rights would need to be
explained and justified. This appears to have been the approach of Laws J in
the High Court decision in R v Cambridgeshire Health Authority ex p B, where
his judgment was based on the proposition that a public body should not be
permitted to infringe a fundamental human right (in this case, the right to life)
unless it could show substantial objective justification for doing so on public
interest grounds.96
The fact that the treatment would have implications for the health
authoritys budget was not sufficient reason to absolve the authority from
having to explain the priorities that had led them to the decision not to fund
the treatment. Laws J did not go so far as to insist that treatment be given, but
said that the authority should re-take the decision in the light of his judgment.
In this way, he was not encroaching on the function of the authority, whose
business it was to make the decision. The Court of Appeal were reluctant to
go this far, and overturned the decision, saying that it was unrealistic for
health authorities to be required to present such a detailed justification for
their actions to the court. Rhoda James and Diane Longley are critical of the
approach adopted by the Court of Appeal. They are not arguing for judicial
interference with decisions, but for refining the decision making process and
for the adoption of rigorous standards of scrutiny.97 Such rigorous standards
of scrutiny could be a way of securing the enforceability of social and
economic rights. Where these rights are at stake, authorities will be required to
present detailed justifications.
Of course, one must be wary of spending too many resources adjudicating
on the correct allocation of scarce resources. Writing about the Canadian
Charter of Rights, Ison regrets the fact that vast sums of public and private
money are being spent in court proceedings while at the same time there are
cuts in public expenditure on healthcare, pensions and education, concluding
that the allocation of large resources to dilettante legal debate now has a
constitutional priority.98 Galligan also notes the understandable reluctance to
spend scarce resources on procedures which could have been used for welfare
services.99 Blair too doubts whether, in the case of scarce resource allocation,
very much in the way of resources ought to be diverted from the provision of
the services themselves into the provision of procedures that demonstrate that
decisions have been made fairly.100 This is not an argument against oversight
and review mechanisms, but for these matters to be kept in perspective. We
need to guard against litigation becoming a substitute for political
discourse,101 but we should also accept that better procedures may make the
system of distribution more effective, and in that way improve the level of
distribution.102
Moreover, it should not be thought that judicial review is the only way of
making social and economic rights of any practical benefit. Other methods
include improved complaints procedures, and the role of ombudsmen should
not be overlooked. The advantage of ombudsmen procedures is that, as well
97
98
99
100
101
102
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CONCLUSION
Questions of rights are fundamental to the widening of participation and
fashioning a constitution which will facilitate that widening. The appeal to the
socio-economic rights discourse is based upon a belief that there is a
fundamental human right to well being which is of no lesser value than rights
to civil and political freedoms. The market alone is an inappropriate
mechanism for guaranteeing social and economic well being, and the
language of rights may be an appropriate way of guaranteeing these benefits
to all citizens. Much has been achieved in terms of civil and political freedoms
by enshrining these notions as basic human rights. Social and economic rights
can similarly be enshrined, but there has to be a recognition that these second
generation rights are of a different order. The problem with using rights
discourse is that these rights refer to matters which are often to do with basic
questions about the allocation of scarce resources, which are the concern of
politics and managerial discretion, and which are probably not justiciable.
Enforcement becomes the key issue here, unless they are to become empty
promises, and only of symbolic value. Not that symbolism has no place here,
and in many respects it may not be possible to achieve anything unless they
103 The European Social Charter was adopted by the Council of Europe in 1961, and came
into force in 1965. See Lewis and Seneviratne, A Social Charter for Britain, for a full
discussion of its operation.
104 Ibid, Lewis and Seneviratne.
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CHAPTER 16
Geraint Howells
INTRODUCTION
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by, for example, changing the implied term of merchantable quality to one of
satisfactory quality.2
The purpose of mentioning these highlights in the development of UK
consumer law is not to provide a description of that law,3 but, rather, to
illustrate the breadth of interest the modern State has shown in consumer
protection. Clearly, being able to influence the decision to adopt such
legislative measures and to have an input into their content is of importance to
consumers and the consumer movement. However, it must be stressed that
the national legislative process is becoming less important as decisions are
being increasingly taken at both higher and lower political levels.
The EC has been an important influence on the development of consumer
policy.4 Even in an area such as product safety, where the UKs laws were
well developed, those laws had to be amended to comply with EC
obligations.5 In other areas, such as doorstep selling, new rules have had to be
introduced in the UK as a result of EC regulation.6 Less prominent, but
increasingly discernible, has been the influence of international economic law
on consumer policy. Consumer issues have come under scrutiny within the
framework of GATT as trade regulations have been perceived to act as
barriers to trade.7 The United Nations has also adopted Guidelines for
Consumer Protection.8
Equally, at the national level consumer rights are increasingly being
provided for by secondary legislation. This is because of powers in the
European Communities Act 1972 to use secondary legislation to meet
European obligations and because many of the primary Acts are enabling
statutes which envisage secondary legislation being enacted to expand on the
principles laid down in the statute or to deal with future contingencies. There
has been a change in the style of both primary and secondary legislation so
that the laws are less prescriptive and instead rely more on general clauses
which are fleshed out by codes, guidance, standards, and by the courts.
Consumer protection is clearly recognised by the modern State as being an
important dimension of both trade and social policy. However, the range of
topics of interest to consumers9 and the fora in which they are discussed
2
3
4
5
6
7
8
9
10 Indeed, even defeats can be valuable if they promote discussion of the issue and cause
business or regulators to respond to the publics perception of deficiencies in the law.
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13 The role of private law in the light of the changes in the modern Welfare State was the
subject of a conference in Finland in August 1997, the proceedings of which are
published in Wilhelmsson (ed), From Dissonance to Sense.
14 Galanter, Why the haves come out ahead: speculations on the limits of legal change.
15 See my more detailed views in Howells, Soft law in EC consumer law.
16 See classically Teubner, Substantive and reflexive elements in modern law.
17 Advertising Standards Authority, British Code of Advertising and Sales Promotion.
18 Control of Misleading Advertisements Regulations 1988, SI 1988/915.
19 As outlined in Council Resolution of 7 May 1985. The new approach to technical
harmonisation and standards set out in OJ C136/1, 1985, is discussed below.
295
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that the courts are one obvious candidate to perform this function. They are,
clearly, going to have a fallback role. But, given the specialised and often
technical issues at stake, it may be sensible in the first instance to facilitate
consumers participation in government agencies (such as the OFT) or selfregulatory bodies. Although there are dangers connected to consumers in
operating within these less formalised procedures (in that, especially with
regard to self-regulatory bodies, they may not understand the dynamics of the
process), there are also benefits, not least in terms of costs.
Before looking at the potential candidates to represent consumers, it will
be useful to separate out three different conceptions of the consumer interest:
(1) Consumer interest as the public interest. Consumers cannot afford to be
single-minded in their objectives in the same way as trade unionists or
even environmentalists can be. If workers obtain excessive wage increases
or environmentalists impose unduly rigorous standards, this may harmful
to the public interest, but these interest groups may still consider the result
a success. For whilst they may share in the general burden placed on
society, this will be more than compensated for by the advancement of
their specific interest. Consumers, however, have to pay for the benefits
which accrue to them. So, for example, the benefits of increased product
safety obtained through stricter regulation and increased compensation
have to be balanced against possible increased prices and slower
innovation and release of products to the market. Thus, there would
appear to be a close identity between the consumer and the public interest.
However, the criteria which determine a final choice of policy should not
be confused with the means of making that choice. If the final choice is to
be as informed as possible, there is a need for the particular concerns of
consumers to be represented and for the consumer viewpoint to be
recognised when balancing competing interests. Indeed, there is a danger
that as the impact of most decisions on individual consumers is normally
rather weak,25 the concerns of those more immediately affected, such as
workers and industrialists, will be voiced more loudly.
(2) Consumer interest as the preference of well informed and articulate consumers.
Much of consumer law works on the assumption that it is responding to
the needs of well informed consumers who are able to look after their own
interests if given the right information. This has at least two dangerous
consequences. First, it associates consumerism with bourgeois values.
Whilst the interests of the well off, articulate consumer should not be
ignored, neither should they have undue preference over the concerns of
other consumers, in particular the often more vital needs of vulnerable
consumers. Here one sees shades of the debate about whether consumer
25 Even if some decisions can ultimately have tragic consequences for some consumers,
this is actually only perceived as representing a marginal increase in risk at the time the
decision is made.
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law should simply seek to perfect the functioning of the market or should
have more distributive goals.26 Secondly, it is problematic to assume that
individuals always know what is in their best interest. Whilst it is
appropriate on many occasions to respect the autonomy of individuals
and to allow them a freedom to express their legitimate preferences
through the market mechanism, this should not be confused with a
machismo which fails to reflect the limited ability of individuals to make
sensible decisions. The consumer marketplace is becoming increasingly
complex. Not only are products and services becoming increasing
sophisticated, but so are methods of advertising, marketing, and providing
for payment for those goods and services. Many thousands of
professionals are involved in ensuring that the relevant rules and
standards reflect business interests. An individual consumer would be
foolhardy to suggest that he or she had the ability or time to debate these
issues on her or his own behalf. The best he or she can do is to delegate the
decision making to a body he or she trusts and which will continue to
allow individual freedom of choice to an extent that is compatible with the
general good. Controversially, it must be suggested that there are some
situations in which the clear preference of consumers to enter into certain
types of agreement should be overridden. 27 What is sometimes
pejoratively described as paternalism can also be viewed as effective
regulation, which prevents consumers from inflicting harm unnecessarily
on themselves due to their failure to assess their own interests properly.28
(3) Consumer interest as protecting vulnerable consumers. This conception of
consumer interest views the protection of vulnerable consumers as a
particular concern of consumer law. Consumers may be vulnerable for
various reasons poverty, poor education, disability, youth, old age, etc.
Vulnerable consumers may have particular concerns which need
addressing and strategies for protecting well off, educated and articulate
consumers may not be appropriate for vulnerable consumers. Equally,
regulations introduced to protect the well off may harm poorer consumers
if it results in their no longer having access to certain products (with no
affordable or practicable alternative) or to price increases which have a
disproportionate impact on their budgets. The concerns of vulnerable
consumers should be taken into account and balanced against the interests
of other consumers. They need to have their particular concerns voiced
and, because of their weak position, it will often be necessary to create
institutions to articulate their concerns.
26 Howells, Contract law: the challenge for the critical consumer lawyer.
27 Kennedy, Distributive and paternalist motives in contract and tort law, with special
reference to compulsory terms and unequal bargaining power.
28 This is a big issue which I cannot develop fully here. See my views in the context of
consumer credit and product safety in, respectively, Howells, Seeking social justice for
poor consumers in credit markets; and Howells, Consumer Product Safety.
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ensure the consumer voice is heard and a duty to separate out its role as
protector of the public and consumer interests.
In an ideal world, government would delegate the task of protecting
consumers to specific bodies which had the objective of promoting the
consumer interest. This could involve the delegation of resources (as happens
in the area of standardisation) or the establishment of specialised government
agencies which had the task of promoting the consumer interest. Yet even
consumer oriented government bodies like the OFT must balance the interests
of the business community against those of consumers. The National
Consumer Council is an interesting institution. It has the express purpose of
researching matters of consumer interest and lobbying government on the
consumers behalf. It is particularly valuable as it has a special brief to look
after the interests of vulnerable consumers.31 However, even government
departments closely associated with industry concerns, such as the
Department of Trade and Industry, have valuable expertise which, if used in
an appropriate way, can enhance the ability of consumers to participate in the
decision making process.
We have already noted that individual consumers can only weakly affect
consumer policy through their actions in the marketplace. There are instances
of individual consumers becoming involved in consumer policy by sitting on
committees, etc. However, this is problematic as they often lack the technical
skills to be able to compete with business representatives and there are
problems about how such persons are selected, their legitimacy to claim to
speak on behalf of the consumer collective and the possible unrepresentative
nature of such volunteers.
Obvious candidates to represent the consumer interest are organisations
established for that purpose which are organised along democratic lines.
There are a wide range of range of consumer bodies. Some operate at the local
level, 32 but the majority operate at the national level. The Consumers
Association has some 715,000 members,33 although the majority of these will
not be active members but rather subscribers to its products. There are many
more product specific consumer groups, from the Campaigns for Real Ale to
the Automobile Association and the Royal Automobile Club. So long as such
bodies can show that they are accountable to their members, then they are
obvious candidates to speak on behalf of consumers. Clearly, however, they
are a self-selecting sample of consumers. Specific consumers willingness to
join a consumer group perhaps suggests they are more concerned and
articulate about consumer issues than the average consumer. The need to levy
a membership fee (which in the case of the Consumers Association involves a
not insubstantial subscription to Which?) may further slant membership
towards the middle and upper classes. There is a potential danger that this
causes consumerism to promote bourgeois values and interests, but it is more
likely that non-members will be free-rider beneficiaries of the efforts of
consumer organisations.34 In fact, consumer groups in the UK have a good
record of showing concern for vulnerable consumers, but obviously their
efforts will principally be directed towards the issues which concern their
members. Government funding may be appropriate to permit them to take on
a broader role of representing the general consumer interest.
Consumer interests are also represented by a wide range of Consumer
Councils and user groups which operate predominantly in the utility sectors.
Normally, members of these bodies are appointed rather than elected. Such
bodies can play a useful role in representing the consumer perspective within
those industries, but are probably less able to claim a mandate to speak on
behalf of consumers than consumer organisations and are unlikely to want to
become involved in litigation on the consumers behalf.
34 Olsen, The Logic of Collective Action. The free-rider argument is one justification for
providing government support to such organisations.
35 Macaulay, Lawyers and consumer protection.
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36 The Supreme Court Procedure Committee has issued a Guide For Use in Group Actions.
For a critique of the existing law, see Howells, Mass torts. For an up to date look at
recent reform proposals, see Howells, Consumer mass damages in the common law.
302
For most consumer claims, the test case strategy has been the preferred
option (although these have invariably involved large personal injury claims
for product liability). In practice, the courts have been innovative in adapting
their procedures, for they have recognised the need to prevent the court
system being overwhelmed by such mass claims brought in numerous
individual actions.37 Lord Woolf has suggested that a formal multi-party
action procedure be adopted when the courts recognise a multi-party
situation.38 His proposals adopt a flexible approach to when such procedures
should be invoked and look likely to be adopted in some form.39
However, the proposed new rules fail adequately to address the question
of funding such litigation. This issue has bedevilled this area since Hirst Js
ruling in Davies v Eli Lilley and Co40 that non-legally aided plaintiffs could not
have a free ride on the back of lead plaintiffs selected from amongst those
with legal aid.41 All members of the group action must bear a proportion of
any award of costs made in favour of the defendants, which in such group
actions can be enormous and which may be incurred even if the plaintiffs are
eventually successful in their claim, because of interlocutory proceedings.
Furthermore, the availability of legal aid for such cases is under threat. The
Legal Aid Board has become cautious about backing such actions since it
spent 35 m on the denzodisapene tranquilliser case without the matter even
reaching court. The Government has now proposed removing legal aid from
this area and replacing it by an extension of the conditional fee scheme under
which lawyers work on a no win, no fee basis, but are able to claim an uplift
of up to 100% of their fee if successful. Such a scheme seems inappropriate in
the area of mass product liability claims. The cost of supporting such litigation
is beyond the means of most plaintiff personal injury firms, which tend to be
of no more than modest size. The uplift is too modest to be attractive for all
but the relatively safe cases and in these cases there is little reason why
plaintiffs should have to meet inflated lawyers bills.
If the class action is to be a vehicle for consumer participation, these
funding problems need to be addressed. Some suggestions have been put
forward. For instance, class actions could be financed by a contingency legal
aid fund. This would require at least initial pump-priming funding, which is
37 Horrocks v Ford Motor Company (1990) The Times, 15 February, per Lord Donaldson:
Standard court procedures were designed for the determination of the general run of
claims coming before the courts. But, if the courts were presented with large numbers of
claims with special features in common, they would devise new procedures specially
adapted to such cases.
38 Woolf Committee, Report of the Committee on Access to Justice. This drew heavily on Law
Society Civil Litigation Committee, Group Actions Made Easier.
39 See the consultation paper: Lord Chancellors Department, Access to Justice Multi-party
Situations: Proposed New Procedures.
40 [1987] 1 WLR 1136.
41 Legally aided plaintiffs have the advantage that not only does the Legal Aid Board meet
the costs of bringing the action, but also the normal rule that costs are awarded against
an unsuccessful party does not generally apply in the case of a party on legal aid.
303
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42 Such schemes have been mooted in both Scottish Consumer Council, Class Actions in the
Scottish Courts and Scottish Law Commission, Multi-Party Actions; Court Proceedings and
Funding. The Woolf Committee also seems sympathetic to the idea. Woolf Committee,
Report of the Committee on Access to Justice, p 242.
43 The National Consumer Council Ordinary Justice, p 334 proposes a maximum
contribution of 1,000 when the development risks defence is raised in product liability
litigation.
44 The author is a member of that working group.
304
If the question is simply about redress for small claims, then some form of
modified class action or representative action (in the sense or Ord 15 r 12)
might be appropriate. It might be desirable to permit consumer organisations
to act as the representative for a group of consumers or on behalf of the
collective consumer interest. It is envisaged that the multi-party action will
usually only bind members of the class who opt in by signing a register.
Representative actions bind all parties who are considered to have been
present by representation, even if they had not been informed of the court
action. However, an opt out procedure is the most appropriate model when
the amounts at stake are very small, for individuals will not bother to join a
register when they have so little at stake personally.
This also raises important issues about remedies. In large class, actions the
collective dimension can permit scope for innovative settlements.45 When
individual claims are small, it may indeed be necessary for novel remedies to
be fashioned which adequately deter the trader and compensate consumers as
a group, even if individual consumers cannot benefit personally. The New
York Yellow Cab case provides a classic example.46 This involved overcharging
by New York cabbies. Clearly, those affected could not be traced and would
probably have been unable to prove their losses. The remedy was for the
cabbies to undercharge for a similar period. Nearer to home, when Rover
were found to be breaching EC competition law, the punishment was for
them to pay 1 m to the Consumers Association for research into car safety.
This obviously was a benefit to the consumers as a group. This reflects the fact
that the harm is suffered by consumers collectively.47 Of course, where the
amounts at stake are undisputed, the affected consumers are easily
identifiable and it is practicable to make payments direct to them (for
example, if a fixed charge by a utility is challenged), then individual redress
may be appropriate even for relatively small amounts.
When the harm suffered by individuals is small, non-specific or not yet
inflicted, consumer welfare may be more appropriately enhanced by the
introduction of a system of injunctive relief. Within Europe, there are two
models for market regulation in this way. The Scandinavian model relies
upon a public official, the Consumer Ombudsman, to bring such actions,48
45 See the interesting discussion of the agent orange litigation in Schuck, Agent Orange on
Trial.
46 Daar v Yellow Cab Co (1967) 433 P 2d 732.
47 In France, a distinction is drawn between harm to the consumer collective and the
accumulated harm suffered by individual consumers. The former type of harm
although intellectually appealing is rather ethereal and so the French courts often end
up only awarding nominal damages under this theory. Calais-Auloy and Steinmetz,
Droit de la Consommation, pp 475 et seq.
48 Wilhelmsson, Administrative procedures for the control of marketing practices
theoretical rationale and perspectives. In fact, Nordic consumer organisations also have
the formal right of action, but this is rarely invoked. Tala, Soft law as a method for
consumer protection and consumer influence.
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56 See the bulletins issued by the OFT in May 1996, September 1996, March 1997 and
December 1997. It is understood that more than 2,000 terms have been challenged by
the OFT.
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61 For more detail on the role of consumer representation in standardisation, see Howells,
Consumer safety and standardisation: protection through representation?; and
Howells, Consumer Product Safety.
310
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For present purposes, it is important to note that advertising selfregulation is a relatively closed process with little scope for consumer
participation. Doubtless this was because its structure was established at an
early stage in the development of consumerism. The British Code of
Advertising and Sales Promotion is drafted by the Code of Advertising
Practice Committee (CAP). The CAP comprises 20 representatives of trade
associations representing advertisers, advertising agencies and media, such as
cinema, newspaper, magazine and poster site owners. There is no formal
consumer input at all, although when the Code is revised it is put out for
consultation. However, consumer organisations and/or the National
Consumer Council surely should merit a place on this committee which
establishes the rules of the game. Some independent ASA members do sit on
CAP committees.68 The ASA supervises the Code and acts as an enforcement
agency. It has a chairman from outside the industry and two thirds of its
membership must have no connection with industry, with the advertising
industry members sitting as individuals and not representing any sectional
interest. Thus, not only does the industry draft its own rules, but it also
involved in applying them. Admittedly, advertising industry members are not
in the majority, but one can imagine that the voices of seasoned industry
experts carry significant weight in discussions. Equally, the independent
members are appointed by the chairman of the ASA itself, and it is unlikely
that radical candidates will be appointed as the chairman is himself appointed
by the Advertising Standards Board of Finance, which is the body that collects
the levy from advertisers used to fund the self-regulatory system.
The ASA has a good pedigree and was a trailblazer in the area of selfregulation. It is still one of the most sophisticated models of advertising selfregulation. Nevertheless, when judged against the twin requirements of
integrating self-regulation into the legal system and participation by
consumers, one can see that it has significant flaws. A possible model for
reform might be provided by Part III of the Consumer Protection Act 1987.
This provides for a general offence of giving misleading price indications
(s 20) and backs this up with a statutory code of practice which has an
evidential status under the Act (s 25). Possibly the self-regulatory bodies may
be suited to the task of producing such guidance within a legislative
framework, which could also ensure the involvement of interested parties
such as pressure groups, perhaps by placing the development of such codes
under the supervision of the OFT with the actual process being undertaken
within the auspices of the BSI.
68 The CAP has two review panels, one for general media, the other for sales promotion
and direct response advertising, and one independent ASA council member sits on each
panel.
313
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registerable under the Restrictive Practices Act 1976, codes which have the
Director Generals support will not be treated as placing significant
restrictions on competition.
To date, 42 trade association voluntary codes have been supported by the
OFT. The British Code of Advertising and Sales Promotion Practice (BCASPP)
are outside this scheme as it is not developed by a relevant association. We
have already noted that placing this code under the supervision of the OFT
may be one way of ensuring closer integration of that code with the legal
system.
Without reviewing all the pros and cons of codes of practice,74 two issues
of particular concern to us here will briefly be considered, namely, the extent
of consumer participation and the enforceability of the codes. There seems to
be a wide variety of approaches to involving consumers in the development of
the Codes. The OFT guidelines require that consultation with consumers,
enforcement bodies and advisory services take place throughout the
preparation of the Code. It is important that consumers are not simply asked
to comment on the final draft as by that time the main contours of the
document would have been defined and only marginal improvements might
be obtained for consumers. However, practice seems to vary between trade
associations as to how fully they involve consumers.
It is generally assumed that, unless mentioned in the contract (or possibly
the advertising and promotional literature), codes of practice do not provide
consumers with direct contractual rights. The powers of the associations are
also limited both formally (for example, they may only be able to reprimand
or expel members and may not be able to require them to compensate
consumers) and practically (by the association having to rely on membership
fees for its very existence). Trade associations divide over whether the best
way to treat delinquent members is to expel them (leaving them totally
uncontrolled, but upholding the reputation of the association) or to try to keep
them within the fold and educate them as to their responsibilities. The nonapplicability of codes to non-members is a serious weakness, particularly in
sectors where membership of a trade association is not a significant factor
affecting consumer choice. This could be countered in two ways. Legislation
could provide a framework in specific areas so that the function of codes
would be to assist traders to meet their obligations and even non-members or
members who flouted the law could have the primary law enforced against
them. Taking this one stage further, one could again go back to the Director
Generals 1986 report on A General Duty to Trade Fairly which proposed that
the content of the general duty be spelt out in codes of practice. Once codes
had been approved by Parliament, they would have been given statutory
backing and could therefore be applied to all traders, not just those covered by
Promoting Participation
the trade associations. It was envisaged that compliance with the Code would
be a defence to the allegation that the general duty had been breached,
whereas non-observance would be evidence of breach, although it would be
open to the defendant to show he had given equivalent protection.75
Reactions to codes of practice are almost instinctive. The business
community is sympathetic to them, whilst consumer representatives are
suspicious of them. I take a positive view of their potential. Note, I am
referring here to their potential and not to the current position. Codes could be
a useful complement to legislation, fleshing out the broad aspirations set out
in the law (thereby making codes indirectly relevant to non-members) and
dealing with issues not amenable to formal legislation. For this to work two
pre-conditions must be met. First, the self-regulatory codes must be developed
within a legislative framework and, secondly, consumer representatives must
participate in the development of the codes. There are, clearly, great variations
in the quality of codes and this must be partly a result of the OFT developing
a hands-off approach.
After its latest consultation exercise, the OFT has proposed going beyond
codes of practice by suggesting that the BSI should develop a core standard
and a suite of sectoral standards which businesses would sign up to in order
to be able to display a better trader logo.76 Policing would be undertaken by
an independent agency to avoid the difficulties which arise from trade
associations having to discipline their own members. This seems a positive
way forward which would place self-regulation within a more structured
environment and permit consumer participation. However, I would still
prefer this to be undertaken against a legislative backdrop which both
provided a framework for the self-regulatory process and imposed some
general obligations, even on those traders who did not sign up to the new
scheme.
Promoting Participation
CONCLUSIONS
Regulation is becoming increasingly polycentric. It takes place at the local,
national, regional and international levels. Its tools are no longer restricted to
detailed prescriptive national laws. Primary legislation is often simply an
excuse for secondary legislation or guidance. Legal rules themselves are
increasingly drafted in broad general terms leaving the content of the law to
be defined by government agencies, the courts or self-regulatory bodies. All
these developments place increased stress on the resources of those who seek
to ensure the consumers voice is heard in the regulatory process. Democratic
consumer organisations have an important role to play in representing the
consumer, but government also has a duty to ensure either that consumer
organisations are properly financed or relatively independent government
institutions look after the consumer interest.
Consumer organisations are going to have to prioritise their efforts
carefully. Direct lobbying of government should not necessarily be their sole
means of promoting the consumer interest. Social disputes are increasingly
likely to be resolved in the courts and self-regulatory bodies will make
important decisions affecting consumer welfare. Whether consumers can have
access to the courts and these self-regulatory institutions will be an important
litmus test as to the nature of the new regulatory environment. It will help us
to decide whether we are developing a more socially responsive law or simply
one which is privatising legal and social policy and placing power even more
firmly in the hands of the business community.
Consumer organisations may find it fruitful to tackle the problems
consumers face directly through the market mechanism. They should set the
standards they believe it is legitimate for consumers to expect and only give
their approval to goods and services which meet these standards (whether
this can be achieved through BSI procedures or whether more direct appeals
to the public are necessary remains a matter of debate). In this way, they can
harness the purchasing power of the consumer body to demand better
standards. If this approach was successful, it would then provide the
mainstream traders with an incentive to ensure similar standards are applied
to all traders through legislation.
318
CHAPTER 17
JE Parkinson
INTRODUCTION
Fifty of the worlds hundred largest economies are companies. The 500 biggest
corporations control 25% of the worlds economic output.1 These and other
large businesses have power in the very important sense that their managers
make choices that affect others significantly.2 The scope of this power is wide
ranging:
by making ordinary business decisions managers now have more power
than most sovereign governments to determine where people will live; what
work they will do if any; what they will eat, drink, and wear; and what sorts of
knowledge they will encourage; and what kinds of society their children will
inherit.3
1
2
3
4
Promoting Participation
5
6
7
SHAREHOLDER PARTICIPATION
The legal model of the company is often described as a principal-agent model,
the directors being the agents and the shareholders the principals. Technically
13 Eg, Germany and Sweden. It is common for companies to decide in their commercial
interests to appoint representatives of third parties, eg, major lenders or suppliers, to
the board.
14 Orts, The complexity and legitimacy of corporate law, p 1620; and Herman, Corporate
Control, Corporate Power, pp 28189.
15 See, generally, Parkinson, Corporate Power and Responsibility, pp 38693.
321
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the directors are agents of the company rather than of the shareholders,16 but
the shareholder-director relationship is sufficiently close to one of agency to
make analysis in those terms illuminating for some purposes.17 Thus, while
the corporate constitution invariably vests the authority to manage the
business in the board, to the exclusion of the shareholders,18 the shareholders
appoint and are entitled to remove the directors from office,19 the directors
fiduciary duties require them to act in the shareholders interests
exclusively,20 and the directors are obliged to report to the shareholders on
their stewardship of the business.21 The shareholders rights of participation
conferred by company law, which are exercised by voting in general meeting,
are designed principally to ensure that the directors exercise their powers for
the shareholders benefit. 22 They include mechanisms that allow the
shareholders to hold the directors accountable for, and to monitor, their
performance of the management function. In addition to the ability of the
shareholders to remove the directors from office, the directors must, for
example, seek shareholder consent to enter into transactions affected by
potential conflicts of interest.23 The Companies Act also allocates to the
shareholders the power to redefine the boundaries of managerial authority
and to make decisions on issues that are deemed to fall outside the
responsibilities of management. The approval of the shareholders must
accordingly be obtained to amend the companys constitution and for such
matters as altering the size and structure of its share capital.24 The decision
making rights provided by the Companies Act are only minimum
16 See, further, Griffiths, Shareholding and the governance of public companies,
pp 6465.
17 Eg, Cadbury Committee, Report of the Committee on the Financial Aspects of Corporate
Governance, para 6.1: the shareholders as owners of the company elect the directors to
run the business on their behalf and hold them accountable for its progress.
18 The shareholders can, however, intervene by special resolution. Companies (Tables A to
F) Regulations 1985, Table A, Art 70.
19 Companies (Tables A to F) Regulations 1985, Art 78; and Companies Act 1985, s 303.
20 Where the company is insolvent or on the verge of insolvency, the directors duty
mutates to one to have concern for the interests of creditors. West Mercia Safetywear Ltd v
Dodd [1988] BCLC 250. The directors must also have regard to the interests of
employees, but it is doubtful whether this entitles them to give preference to employee
interests over those of the shareholders where there is a clash. Companies Act 1985,
s 309.
21 Companies Act 1985, Pt VII.
22 Somewhat surprisingly, the shareholders rights do not include the right to enforce
directors duties in the companys name. Breckland Group Holdings Ltd v London and
Suffolk Properties [1989] BCLC 100. In certain circumstances, individual shareholders are
permitted to sue on the companys behalf by means of a derivative action. The law is
generally thought to be too restrictive and is currently under review. Law Commission,
Shareholder Remedies.
23 Companies Act 1985, Pt X.
24 Companies listed on the Stock Exchange must also obtain shareholder consent for major
asset disposals and acquisitions (super class 1 transactions). Stock Exchange, The
Listing Rules, ch 10.
322
Participation in practice
It is well documented that in practice only a small percentage of shareholders
in public companies exercise their voting rights.25 With shares in the majority
of companies being very widely dispersed, each shareholder usually controls
a tiny proportion of the votes. This being so, most shareholders are rationally
apathetic.26 That is, because whether or not they vote will on its own make no
difference to the outcome, and the costs of co-operating with other
shareholders to bring about a particular result are likely to outweigh the
benefits, the best solution is to remain passive. The upshot is the separation of
ownership and control identified by AA Berle and GC Means over 60 years
ago,27 implying a level of freedom on the part of management to pursue goals
at variance with the maximisation of shareholder returns. Subsequently, the
trend towards concentration of holdings in the hands of institutional investors
has increased the incentives for more active engagement and reduced the
costs of collaboration. There is now plenty of evidence to show that
institutions have regular contact with the managements of portfolio
companies and often succeed in bringing about changes in policy and board
composition and improvements in the governance framework.28 While the
voting power normally exercised at general meetings may be low, therefore,
shareholders formal rights of participation are supplemented in practice by a
significant level of behind the scenes activity. Precisely which issues are
reserved for determination by the shareholders is accordingly likely to be of
some practical importance, because of the leverage that the ability to reject
company proposals gives the institutions in their contacts with managers.
The significance of the role of the institutions should not be exaggerated,
however. Institutions have widely diversified investments and typically hold
a very small proportion of the shares in a large number of companies. Paying
close attention to the affairs of all these companies on a continuing basis is not
feasible. Further, many funds are managed externally. Fund managers will be
reluctant to incur the costs of intervention, since the benefits are likely to be
25
26
27
28
Promoting Participation
deferred and will accrue to their clients rather than themselves, and in a
competitive market for fund management services they will have difficulty in
passing the costs on.29 It also seems that the most extreme and often the most
valuable form of intervention, removing an inadequate board, is usually
beyond the institutions capacity. It has been suggested that forcing a change
in policy or personnel that management is disposed to resist normally
requires a coalition of institutions holding between them at least 2030% of the
equity, but numbering no more than three or four institutions. With a greater
number of participants, effective coordination becomes impossible. The
crucial point is that even if the top three or four institutions in terms of
percentage holdings were to be members of the coalition, they would together
still have inadequate voting strength for a successful intervention.30 This
partly explains why major interventions are so few, and why institutions,
despite being aware of the shortcomings of the companys current
management, often sit back in the hope that a take-over bid will come to their
rescue.
32 Hughes, Mergers and economic performance in the UK: a survey of the empirical
evidence.
33 In effect, the bidder must share a substantial proportion of its potential gains with target
shareholders, thereby reducing the attractiveness to the bidder of mounting a bid. See,
further, Grossman and Hart, Takeover bids, the free-rider problem and the theory of
the corporation.
34 Coffee, Regulating the market for corporate control: a critical assessment of the tender
offers role in corporate governance, p 1200.
35 Franks and Mayer, Hostile takeovers and the correction of managerial failure.
36 There is an extensive literature on this issue. For a sample, see Marsh, Short-Termism on
Trial; and Lipton and Rosenblum, A new system of corporate governance: the
quinquennial election of directors.
325
Promoting Participation
Shareholder activism
It has been assumed in the foregoing discussion that shareholders will use
their rights of participation in order to further their own financial interests.
Some shareholders have different objectives, however, and it is open to them
to use their position as members to further other causes. A recent illustration
is the campaign by the corporate governance pressure group PIRC, which put
forward resolutions at the AGM of Shell calling for it to improve its
environmental and human rights policies and reporting practices.39 More
broadly, a growing (but still small) proportion of the stock market is under the
Promoting Participation
PARTICIPATION TO REDUCE
ADVERSE THIRD PARTY EFFECTS
This section is concerned with participation as a means of limiting the
negative social impact of corporate activity. Parties external to the corporate
framework who make contracts with companies participate in the
organisations decision making in an attenuated sense, not through company
law mechanisms, but through their ability to exit the relationship. The parties
who do this in the most obvious way are the companys customers.
Promoting Participation
56 See, generally, Gray et al, Corporate Social Reporting: Accounting and Accountability, nb,
chs 4 and 5; and Dierkes, Corporate social reporting and auditing: theory and practice.
57 For some proposals, see TUC, Your Stake at Work, pp 2735.
58 Social Audit, Vol 1, No 3, 197374; and Vol 2, Nos 34, 1976. See, also, Adams et al,
Changing Corporate Values: A Guide to Social and Environmental Policy and Practice in
Britains Top Companies, produced by New Consumer and containing brief information
on the record of a large number of consumer goods companies in such areas as equal
opportunities, marketing policy, Third World relationships, and the environment.
59 Boswell, Community and the Economy: The Theory of Public Co-operation, nb, ch 7.
60 For a number of case studies, see Smith, Morality and the Market: Consumer Pressure for
Corporate Accountability, ch 8.
61 See, generally, Craig Smith, Morality and the Market: Consumer Pressure for Corporate
Accountability; and Kuhn and Shriver, Beyond Success, ch 2.
330
62 A survey conducted in 1991 found that 30% of customers were willing to pay at least
5% extra for products which did not harm the ozone layer, and 35% the same for
products which were not harmful to animals. It also discovered that the size of the
premium customers were prepared to pay fell during the recession, prompting the
conclusion that conscience appeasement, like altruism, is a luxury commodity, the
need for which declines in the face of other pressures on consumers incomes. Lansley,
After the Gold Rush: the Trouble with Affluence: Consumer Capitalism and the Way Forward,
pp 20708.
63 RSA, Tomorrows Company: The Role of Business in a Changing World, pp 56.
64 Lenders are particularly concerned about environmental damage caused by borrowers.
Clean up costs might endanger the solvency of the borrower, or the lender may even
be required to take over the borrowers environmental liabilities. Gray, The Greening of
Accountancy: The Profession after Pearce, pp 5253; and DTI Advisory Committee on
Business and the Environment, Environmental Reporting and the Financial Sector: An
Approach to Good Practice.
65 Some companies, particularly retailers, require suppliers to comply with guidelines, eg,
on employment conditions. Christopher Haskins, chairman of Northern Foods, has
suggested a supplier code of practice, modelled on the Cadbury code on corporate
governance, requiring companies to ensure that suppliers comply with laws relating to
employment, the environment, etc, and to encourage them to invest in training and
technology.
331
Promoting Participation
and the ability of contracting parties to threaten profits, but this is not to say
that some managers may not also have a broader disposition to respond to
public pressure. They may view the companys reputation, and their own, as
valuable in themselves, for example, or simply be concerned to do the right
thing. Relationships with interest groups need not necessarily be wholly
adversarial, therefore, and there may be room for constructive dialogue. The
DTIs Advisory Committee on Business and the Environment, for example,
has recently suggested that companies should discuss business decisions that
have major environmental implications with interested parties at an early
stage, before key decisions are taken. The resulting dialogue could lead to
better solutions, which provide environmental gain, and at the same time
satisfy business objectives.66
In relation to certain employment issues, namely, health and safety,
redundancies, and transfers of the undertaking,67 companies are under an
obligation formally to consult the employees. Now that the UK has become a
party to the Social Policy Agreement, the European Works Council Directive
will apply to it, requiring companies with more than 1,000 employees in
Europe, including at least 150 in two Member States, to consult employees on
transnational issues that affect them.68 There is obvious scope for extending
rights of consultation in relation to major issues that have an impact on
employees within the national context, such as the financial performance of
the business, investment plans, and changes in working methods, by means of
domestic works councils69 or through trade union channels. As regards other
groups there may be greater practical difficulties in creating representative
structures and ensuring the legitimacy of the consultees, but these problems
are not necessarily insoluble. The TUC, for example, has suggested that
companies enter into structured dialogue with local communities prior to
planning applications, with local authorities acting as coordinating bodies.
The intention is to enable community views to inform company decisions
about expansion or restructuring and to facilitate creative solutions which are
less likely to be forthcoming through the normal operation of planning
procedures.70
By expanding the informational base on which decisions are made,
providing access to additional sources of expertise, and giving managers
66 DTI Advisory Committee on Business and the Environment, Integrating The
Environment into Business Decisions: The Consensus Approach, p 6. See, also, Steinmann
and Zerfab, Corporate dialogue: a new perspective for public relations.
67 Health and Safety at Work Act 1974, s 2; Employment Protection Act 1975, ss 99107
and Transfer of Undertakings (Protection of Employment) Regulations 1981, amended
by the Collective Redundancies and Transfer of Undertakings (Protection of
Employment) (Amendment) Regulations 1995, respectively.
68 Directive 94/45/EC of 22 September 1994.
69 For proposals in relation to which, see Communication on Worker Information and
Consultation COM (95) 547 final, 14.11.1995.
70 TUC, Your Stake at Work, pp 3334.
332
Promoting Participation
court may consider is in the interests of the company.74 Since the directors
are entitled to view the shareholders interests as being long term ones, it will
usually be impossible to mount a successful challenge to concessions made to
third parties, since in most cases they could plausibly be defended as
protecting or enhancing the companys reputation and hence contributing to
its long term commercial success. Nevertheless, there is a widespread view
that directors misinterpret their duties as being to maximise current returns to
shareholders,75 and in any event, if it is thought desirable that companies
should sometimes act in the interests of third parties, even though this is
contrary to the companys financial goals, then there is much to be said for
redefining directors duties to make this clear.
A practicable response would be expressly to permit directors to take
account of the interests of third parties, but not to seek to compel them to
respond to their concerns. The latter course, perhaps involving duties owed to
a range of different constituencies, is not technically feasible. Duties owed to
beneficiaries with potentially inconsistent interests are incapable of effective
enforcement, because the disputes that are likely to result where the interests
of one group are advanced at the expense of another do not give rise to issues
which courts are capable of resolving. Not only would the court need to assess
the impact of a contested policy on each group, both in the short and the long
term, it would also have to evaluate the policy in accordance with a theory
which stipulated when one set of interests should prevail over the others.
Even if the courts had the resources to perform the first of these tasks, the
latter involves value judgements of a kind inappropriate to the judicial
function.
An alteration to directors duties that was merely permissive would be
unlikely in itself to have a major impact on corporate conduct. In providing a
clear legal basis for directors to take account of the interests of third parties,
however, it could help create a boardroom culture in which ethical issues are
regarded as a legitimate concern of management and strengthen the hand of
board members who are already pressing for improved social performance. It
would also provide an appropriate setting for directors to respond
constructively to the interests of non-shareholder constituencies expressed
through the participative mechanisms discussed above.
74 Re Smith and Fawcett Ltd [1942] Ch 304, p 306, per Lord Greene MR.
75 RSA, Tomorrows Company, pp 1112; and Institute for Public Policy Research/
Commission on Public Policy and British Business, Promoting Prosperity, pp 2324.
334
76 They are forms of what has been termed reflexive law. Teubner, Substantive and
reflexive elements in modern law; and Teubner, Corporate fiduciary duties and their
beneficiaries: a functional approach to the legal institutionalization of corporate
responsibility.
77 See, further, Stone, Where the Law Ends: The Social Control of Corporate Behavior, ch 10; and
Parkinson, Corporate Power and Responsibility, pp 32529.
78 RSA, Tomorrows Company, pp 34.
335
Promoting Participation
79 Institute for Public Policy Research/Commission on Public Policy and British Business,
Promoting Prosperity, pp 2023.
80 See, generally, Handy, The Empty Raincoat: Making Sense of the Future, nb, ch 9; and
International Survey Research, Employee Satisfaction: Tracking European Trends.
336
innovatively to the challenges they face in carrying out their duties. And
employees who have a positive attitude to the firm tend to need less
supervision.
The advantages of co-operative relationships between a company and its
customers and suppliers can be understood by contrasting relationships based
on classical contracts and those involving relational contracts. In a classical
contract, the parties attempt to set out in exhaustive detail their respective
rights and obligations in the various situations that might arise during the
performance of the agreement. Given the impossibility of anticipating all
future contingencies, the contract is likely to be incomplete or to contain
provisions that are inappropriate in the circumstances that actually unfold.
The parties do not regard themselves as owing any additional obligations
extending beyond the letter of the agreement, however, and as a result a
further round of bargaining is required. This process of adjustment is liable to
be adversarial in character, with each side attempting to obtain the maximum
advantage for itself. Renegotiations are, thus, often time consuming and
disruptive, and may involve the exploitation of bargaining position by one
side or the other. Again, once the current agreement expires there is no
commitment to continue with the relationship, and there is unlikely to be a
renewal where a third party can offer a better price. In many cases, it will be
appropriate to transact in this way, for example, when obtaining routine,
standardised supplies. The company does not tie itself into a relationship that
in changed circumstances may become disadvantageous to it, and being free
from long term commitments it can quickly move resources out of
unproductive uses.
In other situations, however, relational contracting may bring considerable
advantages. In a relational contract, while the relationship between the parties
will be founded in a formal agreement, they will not view that agreement as
capturing the totality of their mutual rights and obligations. Rather, they will
regard each other as owing more extensive obligations of co-operation and
good faith, to the point that each party will be expected to incorporate the
interests of the other in its decision-making. In contrast with classical
contracting, the non-adversarial character of the relationship promotes the
free flow of information, in effect lowering the boundaries between the
organisations to allow collaboration in such areas as product design and cost
reduction, monitoring of quality, and delivery schedules. A further advantage
of high trust relationships is that they lessen the risks associated with
transaction-specific investments.81 For example, a supplier of components will
be reluctant to make costly investments in a production process tailored to the
requirements of a particular customer, unless it is confident both that the
Promoting Participation
85 Franks and Mayer, Corporate ownership and corporate control: a study of France,
Germany and the UK.
86 Kester, Industrial groups, p 32.
87 Streek, Social Institutions and Economic Performance: Studies of Industrial Relations in
Advanced Capitalist Economies, ch 5.
88 Mayer, Stock markets, financial institutions, and corporate performance.
89 Roe, Some difference in corporate structure in Germany, Japan and the United States.
90 RSA Inquiry, Tomorrows Company, pp 1213; and Institute for Public Policy
Research/Commission on Public Policy and British Business, Promoting Prosperity,
pp 11114.
339
Promoting Participation
91 Eg, a recent survey reports that while there is a growing awareness among British
managers of the benefits of relational contracting between customers and suppliers and
there are many examples of successful implementation, there are few instances of
relationships in which the parties have had the confidence to make transaction-specific
investments. Confederation of British Industry/Arthur D Little, Partnership Sourcing and
British Industry.
92 Kay and Silberston, Corporate governance, pp 8990.
93 See, also, Blair, Ownership and Control: Rethinking Corporate Governance for The TwentyFirst Century, nb, ch 7, who argues that since parties who make firm-specific
investments in the company (some employees, customers, and suppliers) share rents
with the shareholders, behaviour which maximises shareholder wealth does not
necessarily maximise social wealth. Cf Wallman, The proper interpretation of corporate
constituency statutes and formulation of directors duties, pp 17779, who points out
that diversified shareholders will prefer the company to pursue higher risk policies than
those which maximise wealth overall. Both argue that directors should accordingly aim
to maximise the total wealth creating potential of the company rather than shareholder
wealth.
94 The proposals put forward by Kay and Silberston, Corporate governance, pp 9495,
involving the appointment of independent directors who would appoint executive
management, but whose own position would not depend on the shareholders, would
effectively eliminate hostile take-overs and provide a new means of holding
management accountable.
95 Apart from limited support during the period of the Bullock Report, British trade
unions have been sceptical about the advantages of board representation. Parkinson,
Corporate Power and Responsibility, pp 40810; and Wheeler, Works councils: towards
stakeholding, p 46.
340
Promoting Participation
those who do, the interest obtained will often be fairly insubstantial.100 Some
employees will accordingly be excluded from rights of participation that are
geared only to protecting stakes, and for many others the rights implied will
not be extensive. The same is true of a couple of other arguments for increased
employment protection that have recently been advanced and have some
similarities with the stakeholder position. One relies on the existence of
implicit, but not legally enforceable, promises of job security,101 and the other
on inadequacies in contractual technology which prevent the true agreement
between the parties being reflected in the employment bargain.102 All of these
arguments rely on an exchange relation rather than status. As such they are
liable to be under-inclusive and contingent.103 They need to be supplemented
by an approach that stresses the importance of job stability to the employee,
norms of fairness, and the social interest in minimising insecurity and
dislocation. This approach invites a revision of the standard model of the
company, to give effect, as Collins has argued, to the idea that employees are
members of the corporate organisation and should be treated with respect.104
Respect, at least in so far as it is manifested in employment stability, is a
quality that seems increasingly to be lacking. Recent years have seen a growth
in job insecurity, with employees laid off not merely as a response to
recession, but as a means of boosting returns to shareholders in periods of
corporate prosperity.105 Where profits have fallen, companies have often
reacted by cutting employment rather than dividends, which are supposedly
a residual rather than a fixed entitlement. There has, according to one analyst,
been a redistribution of risk among corporate stakeholders away from
shareholders who are traditionally the professional bearers of risk towards
other groups, and in particular, employees.106 Risk has also been transferred
to the State, through additional calls on the welfare budget to support the
Promoting Participation
110 Waltzer, Spheres of Justice: A Defence of Pluralism and Equality, ch 4; and Keat, The moral
boundaries of the market.
111 See Galbraith, The New Industrial State, 1969, ch 19; Lansley, After the Goldrush, ch 5.
344
In the face of the economic success of corporate capitalism, the scope for
halting the business colonisation of social life, in order to preserve
participative values and the integrity of non-market practices, seems limited.
One approach is to rebuild local government and to revitalise other
democratic and intermediate organisations as a counterweight to the
expansion of company decision-making and the spread of corporate values.
Another, focused on the company itself, is to attempt to restrain, or at least not
to encourage, the extension of corporate influence into what have hitherto
been regarded as non-business spheres. Discussion will be confined here to
the second of these possibilities.
In the last decade or so the view has increasingly been advanced in this
country, following a much older tradition in the US, that it is the social
responsibility of companies to become involved in activities such as providing
support for local communities, financing and otherwise participating in
education, arts sponsorship, and charitable giving.112 A number of bodies
exist for the purpose of encouraging and facilitating such ventures. 113
Companies have responded, and what is now becoming known as corporate
community investment114 has evolved into an important aspect of many
firms business strategy. There has been a move away from regarding social
responsibility simply as philanthropy, perhaps involving cash donations to
the chairmans favourite charity, to seeing it as a mainstream business activity
designed to produce a variety of measurable benefits to the company. These
include improvements in its public image, and the ability to reach segments of
the market that are otherwise difficult to target. Social responsibility
understood in this way should be distinguished from a different meaning of
that term, namely, the voluntary adoption of constraints designed to reduce
the harm caused by the companys ordinary commercial activities. The latter
topic was touched on earlier in this chapter. Unlike social responsibility in this
sense, corporate community investment constitutes an extension of corporate
power into new areas of social life. While there are undoubted benefits from
bringing corporate resources to bear in attempting to solve social problems,
there are also a number of dangers.
The first is that of displacement. There is a risk that if companies take on
tasks that have previously been regarded as the responsibility of government,
then government will treat this as an opportunity to withdraw support. The
result will be that provision that was at least nominally subject to public
accountability and governed by criteria determined through the democratic
process, will be exchanged for provision that is shaped by the corporate
112 See Parkinson, Corporate Power and Responsibility, ch 9.
113 Eg, Business in the Community, whose mission is to support the economic and social
regeneration of communities by raising the quality and extent of business involvement,
and by making that involvement a natural part of successful business practice:
Financial Times, Business in the Community: A Financial Times Guide, Foreword.
114 Ibid, Financial Times, p 5.
345
Promoting Participation
agenda and without public participation. It has been argued that the
motivating purpose of corporate social policy in the US earlier in this century,
involving, for example, the payment of generous welfare benefits to
employees, was precisely to reduce the need for the development of a Welfare
State and, thus, to limit the ambit of government.115
The second danger is that of distortion. In essence, if activities become
dependent on corporate financial and other forms of support, there is a risk
that companies, without necessarily intending to do so, will cause the
priorities of recipients to be reordered in accordance with business objectives.
Referring to business financial support for City Technology Colleges and
involvement in their management, for example, it has been suggested that the
attitudes and political leanings of big business will produce hostility towards,
or incomprehension of, the demands and interests of the inner city
communities that in theory are meant to benefit by the presence of the
schools.116 It is important that business should have a voice in education, but
where educational institutions become financially dependent on companies
there is a possibility that that voice will become too loud. Similarly, with
regard to sponsorship of the arts, business is likely to lean towards supporting
safe productions consonant with the image the company wishes to project
and which are not too challenging to prevailing commercial values. 117
Business support does nothing to prevent artists from engaging in more nonconformist varieties of expression, but it may alter the balance of what is
produced and what is given public prominence.
The third danger operates at the level of perception. If non-commercial
activities, such as education and the arts, come to be seen as appendages of
corporate public relations efforts, then it is likely that they will be regarded as
having been debased. Confidence in the integrity of their practitioners and
their commitment to the distinctive values of the practices in question are
liable to be undermined. The manipulation of images may also have another
significance. It has been argued that:
the architects of the corporate global vision seek a world in which
universalized symbols created and owned by the worlds most powerful
corporations replace the distinctive cultural symbols that link people to
particular places, values, and human communities. Our cultural symbols
provide an important source of identity and meaning; they affirm our worth,
our place in society. They arouse our loyalty to and sense of responsibility for
the health and well-being of our community and its distinctive ecosystem.
115 See Mitchell, The Generous Corporation: A Political Analysis of Economic Power. See, also,
the discussion in Sorell and Hendry, Business Ethics, pp 15963.
116 Sorell and Hendry, Business Ethics, p 162.
117 See, generally, Schiller, Culture Inc: the Corporate Takeover of Public Expression.
346
There is little that can be done in terms of company law to contain the spread
of corporate influence beyond the commercial arena. Directors duties and the
ultra vires doctrine limit the ability of managers to expend company resources
on activities which are not premised on generating returns for shareholders,
but corporate social involvement will usually have a long-term profit
maximising rationale. Even if it did not, it would be only in extreme cases that
it would be possible to demonstrate that the directors had acted improperly in
terms of the existing law.119 And it is difficult to see how the law could be
made more restrictive, given the problems that would be involved in
distinguishing between legitimate commercial activity and behaviour that
constitutes an undesirable extension of the corporate realm. One area in which
a reasonably clear dividing line can be drawn, however, is financial support
for political parties.120 Prohibiting political donations would not have a
dramatic effect on the ability of business to affect the outcome of the
democratic process, but it would remove one of the methods by which
companies are able to exert private influence over public decisions. But,
mainly, protecting the public space is not a task for law. For the moment, the
priority should be to open up the debate on the proper boundaries of business
power.
CHAPTER 18
Tony Prosser
INTRODUCTION
In this chapter, I shall describe the practice of UK regulators in permitting
participation by groups and individuals when regulatory decisions are made
and assess the potential those regulators have to expand such participation. I
shall assume for the purposes of this book that the legitimacy of participation
in this context is agreed, and shall concentrate on the different devices
adopted and the different models of regulation which they assume. In
particular, I shall contrast the distinction between the legal model adopted for
utility regulation with the rather different model applied by the regulators
themselves which, I shall argue, requires that effective regulation implies wide
participation and so undermines the familiar opposition of legitimacy and
efficiency in this context. I shall then finish with a brief discussion of some of
the issues currently unresolved in the debates. As these introductory remarks
suggest, my concern will be almost exclusively with the utility regulators in
telecommunications, water, gas, electricity and transport, but I shall also make
brief reference to broadcasting and civil aviation. Another chapter could be
written on horizontal regulation, for example, in the form of health and safety
requirements.1
Procedural issues in the regulation of public utilities are examined at much greater
length in Prosser, Law and the Regulators.
349
Promoting Participation
2
3
4
5
6
7
8
The relevant provisions are Telecommunications Act 1984, ss 1215; Gas Act 1986,
ss 2327; Electricity Act 1989, ss 1114; Water Industry Act 1991, ss 1316; and Railways
Act 1993, ss 1215.
Monopolies and Mergers Commission, British Gas plc.
Levy and Spiller, Regulation, Institutions and Commitment.
Foster, Privatization, Public Ownership and the Regulation of Natural Monopoly, pp 125,
25967.
Harden and Lewis, The Noble Lie, nb, ch 9; and Prosser, Law and the Regulators,
pp 27786.
351
Promoting Participation
TELECOMMUNICATIONS
The Director General of Telecommunications and OFTEL is the most
advanced of the regulators in developing participative procedures, despite the
chaotic nature of the formal arrangements for consumer representation in this
industry. To deal with the latter point first, before privatisation
telecommunications consumers had been represented through the Post Office
Users National Council, one of the stronger of the notoriously weak
nationalised industry consumer councils. With the establishment of OFTEL in
1984 the Director General was assisted by a number of advisory committees,
including those for consumers in each part of the UK and specialist
committees for small businesses and the elderly and disabled. One hundred
and sixty four local Telecommunications Advisory Committees were also
recognised to represent the interests of consumers, although this system is
now under review. 11 This complexity hardly encourages coherence in
consumer representation and puts a considerable burden on the Director
General himself to ensure that the consumer view is represented.
The first Director General promised openness in his first Annual Report. He
intended to invite representations from interested parties [and] to establish
contact with individuals, companies and representative bodies with interests
in telecommunications so that I may become fully aware of their views on
important issues.12 In order to implement this approach, consultation
documents were issued on which representations were invited and meetings
called with representatives of the industry and other groups.
The most important procedural developments occurred, however, under
the Directorship of Don Cruickshank. Information provision became very
impressive. OFTEL was the first of the regulators to establish a website
containing consultative papers, responses to them and other information.
Since 1995, an annual operating plan has been published setting out
objectives, priorities and a work programme, an exercise very similar to the
requirement of the submission of a regulatory plan required from the US
agencies as part of the Clinton Administrations regulatory reform. In the
same year, a review of the consultation process was announced, the results of
which applied both to statutory and non-statutory consultation exercises. All
responses to consultations were to be made public unless clearly marked
confidential. Respondents were asked to avoid such markings and were
warned that confidential representations might in some circumstances
nevertheless still be published by use of the regulators statutory powers.
Moreover, responses (or parts of responses) which are not put into the public
domain and are therefore untested by other participants in the industry, may
Promoting Participation
14 National Audit Office, The Work of the Directors General of Telecommunications, Gas Supply,
Water Services and Electricity Supply, HC 645, 199596, p 112.
15 Water Industry Act 1991, ss 3235.
355
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Promoting Participation
In response, the Government rejected the proposal for a duty to give reasons
on the curious ground that ministers eschewed unnecessary regulation and
that reasons were given in practice anyway.
The Director General has recently made more use of consultation papers,
undertaking to publish successive papers during the course of a review rather
than simply one at the beginning. He issued four papers in the course of the
transmission price control review during 199596, the final one of which set
out his proposals and summarised earlier responses which had been made.
These responses were also made available in the OFFER library, unless
confidentiality had been requested. Consultants reports were published in
summary form, although the full report on operating costs, including
projected staff reductions, was not made available to the trade unions, despite
a request from them for it. In the current preparation for a competitive
domestic market from 1998, consultation is currently at the stage of the issue
of the fifth consultation paper. The issue of successive papers has of course
been common practice amongst other regulators. So far, no public hearings
have been organised, although the Director General has accepted that the
process might be valuable as it gives others a chance to put questions.28
28 Trade and Industry Committee, Energy Regulation, HC 50, 199697, para 162.
29 Lewis, IBA programme contract awards.
359
Promoting Participation
and the composition and identity of applicants, though not the accompanying
business plans. Large numbers of representations were received on these
applications and detailed reasons are now given for decisions. In part this is
due to a greater willingness of the courts to scrutinise the process. Though
they have not been prepared to intervene in relation to matters of substantive
judgment by the Commission, the courts have indicated that basic due process
is required.30
In contrast to these developments, however, less participative means are
now used by the Civil Aviation Authority in licensing decisions due to
liberalisation of European civil aviation. Previously, the Authority had been
unusual in using public hearings with legal representation, cross-examination
and the intervention of third parties such as users groups. The use of such
hearings appeared to be highly successful.31 These procedures still apply to
the Authoritys licensing hearings, but their numbers have been seriously
reduced because automatic access to almost all routes within the European
Union will be given by the issue of an operating licence. The conditions for the
award of such licences are set out in a Council regulation and if they are
satisfied the licence must be granted unconditionally. No provision for
objections is made, so public hearings are not held in relation to the issue of
such licences.32 Hearings may still be required for non-European services, but
their use declined from 13 hearings over 18 days in the year 198990 to two
over two days in 1994.
REFORM
If there is a general move towards more participative regulatory procedures,
how could this be developed further and made more consistent? Convincing
arguments have been made for the creation of a British Administrative
Procedure Act on the US model. I shall not repeat these arguments here.33 In
the shorter term, a number of modifications to the role of the utility regulators
have been canvassed, and are now being considered in the review of utility
regulation initiated by the new President of the Board of Trade.34 Some of the
CONCLUSIONS
The general introduction to this book presents a powerful case for
participation as a human right, as an essential moral concern. If I fail to make
this case here it is not because I do not fully accept it but because it would be
35 Department of Trade and Industry, A Prohibition Approach to Anti-Competitive
Agreements and Abuse of Dominant Position: Draft Bill.
361
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403
Promoting Participation
404
INDEX
Abrams, Philip,
Acquis communautaire,
152
Activists, political,
106, 107
Administrative
procedure legislation,
245, 351
Advertising Standards
Authority (ASA),
312, 313
Advisory Committee
on Business and the
Environment, DTI,
332
8889
82
326, 327
Allen, Graham,
22021,
222, 223, 224
Allott, Phillip,
137
Almond, Gabriel,
86, 101
203, 204, 331
American Federation
of Labour,
24
Amnesty International,
265
Amsterdam Inter-Governmental
Conference (IGC),
Anarchy, economic defence,
ANEC (international
consumer group),
Angell, Ian,
104, 300
Autonomy
company law,
2021, 2223
EU,
155
legal,
28, 21327
playing the market,
4
rights,
269
See, also, Separation of powers
257
Bank of International
Settlements (BIS),
169
Altruism,
Automobile Association,
3435
311
42
313, 315
Belgium
consumer groups,
European environmental policy,
317
168
Bird, John,
180
169
Blackboard economics,
Braithwaite, John,
140, 155
36
59, 64
71
Britain
See United Kingdom
British Code of Advertising
and Sales Promotion
Practice (BCASPP),
313, 315
351, 357
Aristotle,
145, 272
British Gas,
Arnstein, Sherry,
117, 201
312, 313
British Standards
Institution (BSI),
299, 310
350, 354
ASA (Advertising
Standards Authority),
Assembly, freedom of,
Association of Metropolitan
Authorities,
Attitude surveys,
Audit Commission,
Australia
Administrative Review
Council (ARC),
Declaration
on Judicial Independence,
254
Broadcasting regulation,
178
90, 107, 108
16, 245
248, 249
299
35960
299, 310
BT (British Telecom),
350, 354
Bullock Report,
on industrial democracy,
213
405
153
Promoting Participation
Cadbury Committee,
on corporate governance,
Canada
human rights,
legal autonomy,
Cannan, Edwin,
313
Capitalism, conservative,
52
Carnegie, Andrew,
Causes of action, ECHR, and,
CEN (European
standardisation body),
Certiorari orders,
Ceteris paribus,
183
26063
309, 310, 311
255, 262
68
Charities
changing context of,
concept of,
new notion of,
undermining of,
See, also, Volunteering
18688
18386
19192
38
Charity Commission,
18485
Charity Organisation
Society (COS),
206, 207
Chartered Institute
for Arbitrators,
Child Poverty Action Group,
Children, ECHR, and,
Choice doctrine,
CI (Consumers International),
Citizen organising,
294
108, 261
253
1, 2, 10
311
17980
111, 195
Citizens control,
201, 202
108
Citizens Service,
210
Civil rights,
26768
Civil society
anarchy,
European Union,
financial matters,
individualist view,
law and order,
participation,
political processes,
public goods,
re-inventing,
rediscovering,
State, erosion of,
undermining
by State institutions,
3435
16264
36
3337
36
3143
3941
3536
4142
18890
4243
3839
Co-operative relationships,
advantages,
participation,
See, also, Employee participation
Coase, RH,
33541
33638
33841
5355, 58,
59, 6265
Code of Advertising
Practice Committee (CAP),
Cole, GDH,
313
23, 6,
11, 17, 18
Citizenship
democracy,
European Court
of Justice,
European Union,
local government,
360, 361
115
141, 160
141, 15859
11517
346
Commission on Future
of the Voluntary Sector,
Commission on Social Justice,
Communism,
Communitarianism,
Communities
creation,
ethnic groups,
fashion,
fund raising,
government action,
grass-roots movements,
heterogeneous concept,
history,
housing,
markets,
participation,
politics,
Second World War,
406
11, 12, 19
210
53, 80
175, 18890
178
179
176
12
17778
179
178
176
13
177
1013, 14347
17581
176
Index
social capital,
social and economic
exclusion,
understanding,
175, 176
13
178
186
1723
Competition policy,
89
245
257
Confederation of Professional
Agricultural Organisations
(COPA),
Constitutional order, trust,
166
9195,
92, 95
Constitutions
cultures, and,
7879,
8791, 9598
7577
129,
7879, 8791
9798
everyday life,
participation,
reform in Britain,
Consultation
corporate governance,
local government,
organised interests,
33133
11415
111
Consumer Councils,
Consumers
activism,
consumer interest,
consumer protection
legislation,
litigation,
local government,
markets,
public interest,
representation of,
self-regulation,
utilities, and,
vulnerable,
well informed,
311
Contract, law of
See Hybrid contracts
Conviviality,
Coote, A,
177
277, 278
COPA (Confederation
of Professional Agricultural
Organisations),
166
COPOLCO (consumer
council of ISO),
311
Corporate governance
adverse third party effects,
participation to reduce,
alternating corporate
objectives,
Cadbury Committee,
co-operative relationships,
long term,
company law,
consultation
consumer activism,
employee participation
Greenbury Committee,
Hempel Committee,
multi-constituency board
representation,
participation
as a form of regulation,
public companies,
economic clout,
public space, protection of,
shareholder participation,
299, 310
8
32831
29798
29193
29395, 30108
113
296
297, 299
8, 299301
295, 30817
7
298
29798
300, 301,
306, 307, 310
301
Consumers Association,
Corporations, private,
COS (Charity Organisation
Society),
Council of Economic
and Finance Ministers
(ECOFIN),
Council of Europe
human rights,
legal autonomy,
407
32835
33334
322, 326
33541
22
33133
32831
331, 332,
34143
326
22
32021
27, 335
31920
34447
32128
5
206, 207
163, 169,
170, 171
264
220
Promoting Participation
local self-government,
participation improvement,
social market economy,
3
29
25
26063
108, 109, 110
Crosland, Anthony,
107
Crossman, Richard,
102
Cultural theory,
8387, 84,
9295, 92, 95
Cultures
biases about participation,
constitutionalism,
sustainable participation,
8287
7879,
8791, 9598
8082
Czech Republic,
fall of Communism,
252
Derrida, Jacques,
137
253
public health,
254
Devolution, Scotland,
173, 236
Dicey, AV,
229
Dickson, Alec,
186
Director General
of Fair Trading,
Directors
as agents of companies,
duties of,
Discrimination,
Distance Selling Directive,
80
Douglas, Mary,
Droit administratif,
Dahl, Robert,
102
Drucker, Peter,
Dahrendorf, Ralf,
192
Damages,
262
de Tocqueville, Alexis
144, 146
Declarations,
255, 262
Delors, Jacques,
Democracy
analytical attention,
citizenship, and,
culture, and,
employee participation,
industrial,
legitimacy,
markets,
radical form,
reactive, Britain as,
Schumpeter, JA, view of,
social institutions,
Denmark
EU, and,
European environmental policy,
referendum defeat,
separation of powers,
Department of Trade
and Industry (DTI),
151
2
115
99, 100
20
15256
148
17
147
108
106, 144
69
170
168
165
236
300, 332
79, 14243,
Dworkin, Ronald,
312, 314
32122
33334, 347
222, 253
306
83
229
20, 207
300, 332
148
80
25
223
12
EC (European Community)
consumer policy,
Monetary Committee,
292
169
169
Index
Energy regulation,
incompatibility
with legislation,
legal autonomy,
258, 259
214, 215,
217, 221
25254
257
25960
26364
230, 239,
240, 242
160
26063
260
missing rights,
politicians veto,
public authorities,
remedies,
separation of power,
social rights,
tribunals,
victims,
ECJ
See European Court of Justice
ECOFIN (Council of Economic
and Finance Ministers),
Economic Co-operation
and Development,
Organisation for,
163, 169,
170, 171
3435, 48
Egalitarianism
See Grid-group theory
EIAs (Environmental Impact
Assessments),
14, 24
Elections
See Voting behaviour
Electricity Consumers
Committees,
358
Electricity regulation,
35758
Employees
citizens as,
company law,
legal position,
participation,
protection,
redundancy,
stakeholding,
EMU (European
Monetary Union),
EN (European standards),
Enclavists,
Environment,
participation, and,
1415
Environmental Impact
Assessments (EIAs),
14, 24
261
EP (European Parliament),
160, 164,
170, 171, 236
Equal Opportunities
Commission (EOC),
Equality,
ETUC (European Trade Union
Conferation),
35658
2324
2023
21
15256, 34143
1723
21
1720
Etzioni, Amitai,
EU (European Union)
as actor,
agricultural aid,
citizenship,
community, ideas of,
defence,
democratic crisis,
devolution,
employee protection,
environmental issues,
Habermas, Jurgen,
participatory
democracy theory,
industrial democracy,
legal autonomy,
legitimacy,
media coverage,
new States seeking to enter,
overcoming a distorted
legacy,
participation, and,
patterns of civil society,
playing the market,
regional development,
single currency,
Social Affairs Commissioner,
role of,
social contract,
solidarity,
Staatenverbund, as,
261
8, 910
166
144, 175
162
157
141, 15859
14347
157
13741
14243
21, 22, 24
14
14750
15256
214
17072
163
157
15961
16470,
17274
16264
7
157
157
12
103
15052
158
Promoting Participation
subsidiarity,
as system,
Third World countries,
worker participation,
European Central Bank (ECB),
142
62
157
15256
169
European Commission,
Directorate General XI,
167, 24041
168
European Convention
on Human Rights
See ECHR
European Council,
solidarity,
subsidiarity,
141, 160
306
154, 155
223
233, 240,
241, 242
152
142
166
European Federation
of Green Parties,
163
European Forum
of Child Welfare,
166
162
162
European System
of Central Banks,
169
66
European Union
See EU (European Union)
European Works Councils,
155, 156
254
252
European Court
of Human Rights, Strasbourg
compensation awards,
263
conflicts,
rights and statutes,
255, 258, 259
domestic relations,
161
ECHR, UK, and,
251
equality doctrine,
242
juvenile crime,
257
legitimate expectation
doctrine,
242
proportionality doctrine,
242
UK record, human rights,
265
European Court of Justice
citizenship,
consumers,
industrial democracy,
legal autonomy,
separation of powers,
168,
169, 170
160, 164,
170, 171, 236
Factions
See Fiefdoms
Fairness doctrine,
187
Fatalism
See Grid-group theory
Federation of Christian
Democratic Parties,
16263
Federation of European
Liberal, Democrat
and Reform Parties,
163
Fiefdoms (special
interest groups),
5, 6, 18, 27
36
151
239
France
EU, and,
separation of powers,
Vichy regime,
170
234
79
Fried, C,
271
329
Fukuyama, Francis,
Fuller, LL,
Future of Voluntary Sector,
Commission on,
Galbraith, JK,
Gas regulation,
410
Index
Geddes, Mike,
11516
Habeas corpus,
Habermas, Jurgen,
141, 158
339
21, 343
141
168
158
222
158
18
234
25
196
333
12
11
20, 220,
22627
5
68
272,
274, 275
181
184
204, 205
Greece
European environmental
policy,
social market economy,
168
26
Greenbury Committee,
on corporate governance,
326
Greenpeace,
261
8387, 84,
9295, 92, 95
6869,
138, 14750
Gibson, Tony,
Grid-group theory,
215
169
102, 103
11, 17
Hampel Committee
(on corporate governance),
Harris, Margaret,
on volunteer theory,
Havel, Vaclav
(Czech President),
22
198200
143
Henley Centre
for Forecasting,
88, 105
Hepple, Bob,
15354
Hierarchism,
8487, 95
Hirschman, AO,
cycles of participation,
Hobbes, Thomas,
176
House of Commons
Select Committee
on Employment,
177
House of Lords
equal opportunities,
reform,
HRC (Human Rights
Commission),
Human capital,
Human rights
assisted conception,
children,
criminal justice,
current UK law,
defined,
deportation,
detention,
discrimination,
extradition,
freedom of expression
and assembly,
freedom of religion,
lethal force,
411
261
79
221, 224, 268
18
257
253
257, 258
25556
31, 3233
252
253, 254
253
252
254
254
253
Promoting Participation
limitation on privacy,
254
politicians veto,
257
public health,
254
sexual minorities,
254
See, also, ECHR (European Convention on
Human Rights); Liberty (National
Council for Civil Liberties); Negative
rights; Positive rights; Social and
economic rights
Human Rights
Commission (HRC),
Hungary, fall of Communism,
Hutton, Will,
Hybrid contracts
contradictory structure of,
defined,
intervention,
merger of private
and public spheres,
neo-liberalism,
participation,
private interests
disappearance of,
public critique of,
public interests,
private critique of,
regulation,
spurious novelty of,
welfare systems,
Independent Broadcasting
Authority,
359
Independent Television
Commission,
361
India
autonomy,
equality in,
social market economy,
Individualism,
67
47
4547
5867
4546, 6869
5255
6973
6869
4851
5255
5867
5657
4851
194, 195
262, 308
336, 352
International Classification
of Non-profit
Organisations (ICNPO),
194, 195
International Covenant
on Economic, Social
and Cultural Rights,
International Labour
Organisatio (ILO),
International Settlements,
Bank of,
169
310, 311
Internationalism, growing,
23943
Intervention,
regulation distinguished,
5867
177
16, 22, 173
169
213
Ireland
European
environmental policy,
See, also, Northern Ireland
140, 155
17
Injunctions,
International Standards
Organisation (ISO),
252
10, 3337,
8487, 269
222, 225
9
25
412
336, 352
168
310, 311
Index
Italy, European
environmental policy,
168
Japan
co-operative relationships,
R and D spending,
339
18
Johns Hopkins
Comparative Non-profit
Sector Project,
236
249
Judiciary
autonomy,
Circuit judges,
High Court judgeships,
Recorders,
separation of powers,
21520
237
236
237
23637
262
Justice
natural,
separation of powers,
8, 9, 10
23637
Keynesian demand
management,
52, 152
Klare, Karl,
47
Kristeva, Julia,
143
Kuenstler, Peter,
176, 18081
Labour policy,
24
Ladder of participation,
117
Latent participation,
118, 135
36
231
76, 90, 293, 303
Legitimacy
European Union,
theory of Jurgen Habermas,
Lethal force, ECHR, and,
Levels of participation,
local authorities,
17072
14750
253
264
254
29395, 30108
Littlechild Report,
350
Local Exchange
Trading Schemes,
179
Local government
case studies,
citizenship,
commitment
to participation,
community bodies,
consultation processes,
decision making,
dominant interests,
environmental issues,
focus of participation,
involvement in,
leadership issues,
levels of participation,
philosophies
of participation,
process of participation,
purposes
of participation,
role,
self-government,
stakeholding,
12432,
11517
11314
13
11415
11517
105
15
134
11921
132
12223
133
13235
11719, 133
12122
3
20
Local Government
Management Board,
Locus standi,
London Voluntary Service Council,
LPSBs (local public
spending bodies),
Luhmann, N,
Madison, James,
Major, John,
2223
252
251, 255,
258, 262, 263
human rights
legislation,
sexual minorities,
Litigation, consumers,
194, 196
Judicial Appointments
Commission,
Legal Aid,
Mandamus orders,
413
15, 20
243
13
102
56
6
172
255, 262
Promoting Participation
Manpower Services
Commission (MSC),
Market, playing the,
Markets
consumers,
democracy,
merger of private
and public,
private, public critique of,
public, private critique of,
socio-economic rights,
values of,
Meade, JE,
Metropolitan Authorities,
Association of,
for Volunteering,
186, 195
296
17
6869
4851, 71
5255
27475
177
50, 52
178
313, 355,
356, 357, 358
National Consumers
Consultative Committee,
104
National Lottery
Charities Board,
185
195
Mill, JS,
18
National Trust,
Monetarist
economic policy,
Monnet, Jean,
139,
171, 172
Montesquieu,
Charles Louis
de Secondant, Baron de,
MORI opinion poll,
Socioconsult Programme,
MSC (Manpower Services
Commission),
Mulgan, Geoff,
11, 104
Nationalism,
306
11, 23
National Survey
of Volunteering (1997),
Moloney Committee,
358
National Council
for Civil Liberties
See Liberty
82
MMC (Monopolies
and Mergers
Commission),
294, 300,
48
Middle East,
political participation,
Misleading Advertising
Directive,
193
247
88, 107
90
186, 195
17576
355
143
Natural justice,
8, 9, 10
11, 23
NDPBs (non-departmental
public bodies),
102
Neighbourliness,
Neo-liberalism,
20205
5255
19
19
NGO (non-governmental
organisation),
Nolan Committee,
North American
Free Trade Association,
261
192, 239
7
178
Northern Ireland
Consumer Council,
317
Nozick, R,
68
19
414
Index
OECD (Organisation
for Economic Co-operation
and Development),
OFFER,
civil society,
communities,
constitutions,
7, 89, 169
consumers,
corporate governance,
corruption,
cultures,
decline in,
educational dimension,
enhanced,
environment,
European Union,
expectations,
financial dimension,
hybrid contracts,
ladder of,
latent,
legal and constitutional
order,
levels of,
litigation,
local government,
logic of,
market, playing the,
as means to an end,
passivity, and,
political process,
purposes of,
regulation and regulators,
357,
358, 359
313
300
309, 31416
291
294, 295
307
357
OFT
See Office of Fair Trading
OFTEL,
27, 238,
353, 354,
355, 356, 357
OFWAT (water
consumer council),
Ombudsman systems,
355, 356
16, 244, 286,
28788, 294
11
2829
12223
30108
11335
24
48
41
10112
3941
11718
27, 335,
34962
8990
30817
23437
risk perception,
self-regulation,
separation of powers,
social and industrial
life, and,
1516
sponsored,
116, 118
sustainable,
8082
top-down process,
13, 11415
volunteering,
39, 197201
See, also, Hirschman, AO: cycles of
participation
7, 89, 169
214
3435,
48, 60, 61
255, 256
101
8889
21327
90
13, 11415
12432
3143
1013, 14347
129,
7879, 8791
291317
22, 31947
40
7891
189
91
9597
1415
16470, 17274
810
90
6973
117
118, 135
162
Passivist attitudes,
UK people,
10112
Pateman, Carole,
19798
Pension funds,
415
20, 24
Promoting Participation
Pensions Ombudsman,
Philanthropy,
244
184, 191, 20304
Pigou, AC,
4950, 53,
55, 5859,
60, 61, 65, 67
Pinochet, General,
250
Pitkin, Hanna,
14546
317
Plant, R,
Pluralism,
13, 146,
162, 166
80
Political processes,
participation and,
3941
Political rights,
26768
Politics, community,
17581
Portugal
European environmental policy,
social market economy,
Positive human rights,
168
26
32, 68,
26772, 280
Post Office Users
National Council,
353
350
12829
254
356
Public Appointments,
Commissioner for,
239
207
25960
Public goods,
Public interest,
consumers,
Public space, protection of,
Public Standards,
Commissioner for,
Putnam, Robert,
Quangos (non-governmental
organizations),
Rawls, John,
Red Cross,
Reflexive laws,
Regional Development
Agencies,
Regulation
broadcasting,
civil aviation,
energy,
fiefdoms (interest groups),
intervention distinguished,
participation, and,
rail,
reform of procedures,
telecommunications,
utility regulation models,
water and sewerage,
See, also, Self-regulation
Religion, freedom of,
Research and Development
spending,
3, 102, 103,
104, 206
138, 146, 272
194
70
177
359
360
35659
27
5867
27, 335
359
36061
35355
34952
35556
254
18
350
Rhodes, Martin,
156
Rights
civil,
human
See Human rights
political,
socio-economic
See Socio-economic rights
Rothbard, Murray,
Rousseau, Jean Jacques,
26768
26768
33, 34
5, 20809
Rowntree Trust,
107
300
Royal Commission
on the Poor Laws (190509),
207
21, 331,
33536
175, 176
Sadurski, W,
St Andrews Ambulance,
416
27374
194
Index
St Johns Ambulance,
Sandel, Michael,
Schumpeter, JA,
Scotland
devolution in,
public expenditure,
194
143, 144,
Shumer, Sara,
145, 149
Single Regeneration
Budget (SRB)
programmes,
106, 144
79, 14243, 236
98
Scott Committee,
on arms to Iraq,
217, 247
Selbourne, David,
175
Select Committee,
Trade and Industry,
Self-help groups, medical,
191
14546
3, 125,
13031, 177
Smith, Adam,
58
Social capital,
175, 176
356, 358
323
177
1516
152, 153
2527
90
Self-incrimination,
ECHR, and,
253
16
Self-regulation, consumers,
295,
Social Trends,
89
30817
Separation of powers
deliberation,
executive effectiveness,
history,
human rights cases,
interference,
internationalism, growing,
jobs of government,
justice, doing of,
new environment,
impact on existing
institutions,
new institutions,
participation,
problems,
purpose,
reform, suggestions for,
See, also, Autonomy: legal
Sewerage regulation,
Sexual minorities, ECHR, and,
Shareholder participation
activism,
agents, shareholders as,
by means of exit,
institutions, role of,
powers of shareholders,
23536
235
229
23031
230
23943
23738
23637
Socio-economic rights
defined,
education,
empowerment,
enforcement,
housing,
justice,
Maastricht Treaty,
markets,
political parties,
rationale,
resources, access to,
239
23839
23437
24350
23133
24350
35556
254
32628
32122
32426
32324
322
267
28586
27879
28288
28485
272, 275
160
27475
277
27282
273, 275,
276, 279
15052
25
255, 256
82
85
Promoting Participation
European environmental
policy,
social market economy,
Sponsored participation,
116, 118
3, 125,
13031
Stakeholding
company law,
corporate governance,
employee protection,
EU,
local government,
regulatory order,
voluntary organisations,
1720
339
1720
153
114, 133
352
12, 199
State
erosion of,
nightwatchman role,
4243
68
Stoker, Gerry,
116
Stokes, Peter,
176
Strasbourg Court
See European Court of Human Rights,
Strasbourg
Subsidiarity,
142
Sui generis,
46, 47,
56, 57, 172
Szyszczak, Erica,
21, 22
Tassin, Etienne,
142
90
177
Teague, Paul,
152
Telecommunications,
Telecommunications
Advisory Committees,
Teubner, G,
Thatcher,
Lady Margaret,
The Netherlands
consumer groups,
168
26
40
21, 331,
33536
356, 358
19, 24, 332
108, 111
189
103
23
105
19
6, 121
26063
9195,
Tusa, John,
177
Ultra vires,
245, 347
152, 15354
Take-overs,
TECS (Training
and Enterprise Councils),
European environmental
policy,
social market economy,
168
26
6, 121
35355
353
69, 71
United Kingdom
autonomy, judicial,
constitutional reform,
decline in participation,
ethnic groups in England,
EU and,
human rights,
life courses,
literacy in,
317
418
306
146, 229
166
19
21520
79, 9798
189
179
170,
17274
79, 25166
82
37
Index
passivity of people,
product safety laws,
R and D spending,
separation of powers,
Social Charter,
introduction of,
sub-cultures,
utility regulation model,
volunteer activity,
written constitution,
lack of,
United Nations
General Assembly,
Guidelines for Consumer
Protection,
10112
92
18
230
273, 288
78
34951
190, 19495
265
268
292
253
252
United States
Administrative Conference
of (ACUS),
American Federation
of Labour,
community, and,
conscription,
constitutionalism,
individualism,
labour law,
literacy in,
North American
Free Trade Association,
political participation,
public life,
R and D spending,
R-Corps and R-Funds in,
separation of powers,
Universal Declaration
of Human Rights,
Utility regulation
extension of duties, utilities,
secrecy of utilities,
sewerage,
stakeholder model,
UK model,
248, 249
24
14344, 145
210
7576
37
24, 147
37
7
82
143
18
20
234
213
243
7
35556
352
34951
water,
35556
153, 154
Venice Conference
on Human Rights,
29, 221
Verba, Sidney,
86, 101
Vienna Conference
on Human Rights (1993),
221
158, 159
207
186
193
Volunteering
community,
1112
defined,
19394, 195, 196
free choice,
195
informal nature,
195
neighbourliness,
20205
non-profit sectors,
196
paradoxes,
20511
participation,
39, 197202
scale in Britain,
19495
stakeholding,
19
unpaid nature,
195
See, also, Altruism; Charities;
Philanthropy
Voting behaviour,
5, 106,
107, 113
shareholders,
323
186
419
79, 173
151
35556
138, 143, 145
278
38, 4851
186
83
Promoting Participation
Williamson, OE,
Womens Royal Voluntary
Service (WRVS),
Woolf Committee,
57
193
231, 237,
7, 24, 292
193
Yates, Keith,
178
Young, Michael,
178
303, 304
Worker participation, EU,
Works Councils,
World Bank,
World Development
Movement,
15256
155, 156
7, 14
261
420