(David Campbell, David Campbell) Promoting Participation

Promoting Participation:
Law or Politics?
CP
Cavendish
Publishing
Limited
London Sydney
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
CP
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Publishing
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London Sydney
First published in 1999 by Cavendish Publishing Limited, The Glass House,

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Lewis, N Douglas
1999
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Promoting participation: law or politics

1. Law and politics
I. Campbell, David II. Lewis, N Douglas
340.11
ISBN 1 85941 483 4
Printed and bound in Great Britain
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
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
(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
1 THE CONSTITUTIONAL IMPLICATIONS OF PARTICIPATION
N Douglas Lewis
2 PARTICIPATION IN CIVIL SOCIETY
31
Kevin Dowd
3 THE HYBRID CONTRACT AND THE MERGING

OF THE PUBLIC AND PRIVATE LAW OF THE
ALLOCATION OF ECONOMIC GOODS
45
David Campbell
4 A CONSTITUTIONAL CULTURE FOR MORE PARTICIPATION:

WHAT WOULD IT LOOK LIKE?
75
Perri 6
5 PARTICIPATION AND PASSIVITY: NO ROOM AT THE TOP
101
Stuart Weir
6 PARTICIPATION AND LOCAL GOVERNMENT
113
Lucy Gaster
7 CONSTITUTIONALISM, DEMOCRACY AND PARTICIPATION

IN THE EUROPEAN UNION
137
Ian Ward
xi
8 CITIZENSHIP, PARTICIPATION AND LEGITIMACY IN THE
EUROPEAN UNION
157
Kevin Featherstone
9 COMMUNITY POLITICS
175
Barry Knight
10 CHARITY AND PHILANTHROPY: TOWARDS

A NEW PERSPECTIVE
183
Nicholas Deakin
11 PARTICIPATION AND VOLUNTEERING
193
Tony Rees
12 PARTICIPATION AND LEGAL AUTONOMY
213
N Douglas Lewis
13 THE SEPARATION OF POWERS IN THE CHANGING

ENVIRONMENT
229
Patrick Birkinshaw
14 THE HUMAN RIGHTS ACT: AN ASSESSMENT OF

THE ACT DESIGNED TO INCORPORATE
THE EUROPEAN CONVENTION ON HUMAN
RIGHTS INTO DOMESTIC LAW
251
John Wadham
15 THE CASE FOR SOCIAL AND ECONOMIC RIGHTS

Mary Seneviratne
xii
267
Contents
16 CONSUMERS AND PARTICIPATION
291
Geraint Howells
17 PARTICIPATION AND CORPORATE GOVERNANCE
319
JE Parkinson
18 PARTICIPATION AND THE REGULATORY ORDER
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
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
ex parte Fire Brigades Union [1995] 2 All ER 244 (HL) . . . . . . . . . . . . . . . . . . . . . . . .230
ex parte Hargreaves [1997] 1 All ER 379 (CA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .242
ex parte Pierson [1977] 3 All ER 577, HL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .231
ex parte Simms [1998] 2 All ER 491 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .247
xvi
Table of Cases
ex parte Thompson [1997] 1 All ER 327 (CA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .248
ex parte USTII [1992] 1 All ER 212 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .248
ex parte Venables [1997] 3 All ER 97 (HL) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .231, 248
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
See Treaties: Amsterdam 1997, draft
Council of Europe Charter

on Self-government 1999 . . . . . . . . . . . . . . . . 3
Beijing Statement on Judicial

Independence 1995 . . . . . . . . . . . . . . . . . . . 213
Council Regulation 2407/92,

23 July 1992 . . . . . . . . . . . . . . . . . . . . . . . . . 360
Bill of Rights (Canada) . . . . . . . . . . . . . . . . . 215

Bill of Rights (India) . . . . . . . . . . . . . . . . . . . . 25
Courts and Legal Services

Act 1990 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 230
Bill of Rights
(United Kingdom) . . . . . . . . . . . . . . . 222, 223,
Criminal Justice and Public

Order Act 1994 . . . . . . . . . . . . . . . . . . 257, 258
224, 241, 250

Art 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 230
Earth Summit, Rio

Canadian Charter of Rights
and Freedoms . . . . . . . . . . . . . . . 280, 283, 287
See Rio Declaration on Environment and

Development
Case of Proclamations 1611 . . . . . . . . . . . . . 214
ECHR (European Convention

on Human Rights)
Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 264
Charity Act 1990 . . . . . . . . . . . . . . . . . . . . . . . 208

Charity Act 1992 . . . . . . . . . . . . . . . . . . 184, 208
Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253
Charity Act 1993 . . . . . . . . . . . . . . . . . . 184, 208
Art 5(1)(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . 254
Charter for Fundamental

Social Rights
of Workers 1989 . . . . . . . . . . . . . . 26, 151, 153,
Art 5(1)(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . 252

Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 263
154, 160
Art 8 . . . . . . . . . . . . . . . . . . . 252, 254, 257, 262
Citizens Charter 199697 . . . . . . . . 34, 8, 105,
Art 8(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 254
119, 235,
Art 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 256
244, 277
Art 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 254
Commission White Paper 1994 . . . . . . . . . . 154
Art 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 263
Companies Act 1985

s 303 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 322
Art 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253
Companies Act 1985

Pt VII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 322
Art 34 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 260
Companies Act 1985

Pt X . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 322
Protocol 4 . . . . . . . . . . . . . . . . . . . . . . . 252, 264
Art 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 252
Art 41 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 262
Protocol 7 . . . . . . . . . . . . . . . . . . . . . . . 252, 264
Companies (Tables A to F)
Regulations 1985
Art 78 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 322
Protocol 11 . . . . . . . . . . . . . . . . . . . . . . . . . . 262
Competition Bill 1999 . . . . . . . . . . . . . . . . . . . . 8
Electricity Act 1989

s 2, Sched 2 . . . . . . . . . . . . . . . . . . . . . . . . . . 358
Consumer Credit Act 1974 . . . . . . . . . . . . . . 291
ss 1114 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 351
Consumer Protection Act 1961 . . . . . . . . . . 291
s 46, Sched 2 . . . . . . . . . . . . . . . . . . . . . . . . . 358
Consumer Protection Act 1987

Pt I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 291
s 51, Sched 2 . . . . . . . . . . . . . . . . . . . . . . . . . 358
Pt II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 291
European Communities
Act 1972 . . . . . . . . . . . . . . . . . . . . . . . . 256, 292
s 53, Sched 2 . . . . . . . . . . . . . . . . . . . . . . . . . 358
Pt III . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 291
European Communities
Act 1973
s 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 233
s 20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 313
s 25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 313
xix
European Community
Maastricht Treaty
Agreement in Social Policy . . . . . . . . 151, 154
See Treaties: European Union 1992
Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154
Multilateral Agreement
on Investment (MAI) . . . . . . . . . . . . . . . . . . . 7
Art 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154
See, also, Treaties, European Union 1992
Official Secrets Act 1989 . . . . . . . . . . . . . 25657
European Union, Business

Transfer Directive 1977 . . . . . . . . . . . . . . . . 21
Paris Treaty
Fair Trading Act 1973 . . . . . . . . . . . . . . . . . . 291
See Treaties: Paris 1951
s 124(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 314
Police and Criminal Evidence

Act 1984 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 263
Fifth Company Law, draft . . . . . . . . . . . . . 153

Food Safety Act 1990 . . . . . . . . . . . . . . . . . . . 291
Railway (Fires) Act 1905 . . . . . . . . . . . . . . . . . 54

Gas Act 1986
s 2, Sched 2 . . . . . . . . . . . . . . . . . . . . . . . . . . 357
Railways Act 1993

ss 1215 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 351
ss 2327 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 351
Redundancies Directive 95/56 . . . . . . . . . . 156
s 32, Sched 2 . . . . . . . . . . . . . . . . . . . . . . . . . 357
Rio Declaration on Environment

and Development 1992
Agenda 21 . . . . . . . . . . . . . . . . . . . . . . . . . 15, 81
s 40, Sched 2 . . . . . . . . . . . . . . . . . . . . . . . . . 357

General Product Safety
Regulations 1994,
SI 1994/2328 . . . . . . . . . . . . . . . . . . . . . . . . 292
Principle 10 . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Rome Treaty
See Treaties: Rome 1957Rules of the Supreme
Court
Ord 15, r 12 . . . . . . . . . . . . . . . . . . . . . . . . . . 302
Housing Finance Act 1972 . . . . . . . . . . . . . . 109

Human Rights Act 1998 . . . . . . . 230, 233, 241,
Ord 53 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 259
242, 243, 247,

251, 25556, 26466
Sale of Goods Act 1979 . . . . . . . . . . . . . . . . . 291
Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 242
Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 242
Sale and Supply of Goods

Act 1994 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 292
s 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 259
Sex Discrimination Act 1975 . . . . . . . . . . . . 261
s 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 258
Single European Act 1985 . . . . . . . . . . . 24, 139,
s 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 258
153, 159, 168
s 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 264
Art 30 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151
Art 118B . . . . . . . . . . . . . . . . . . . . . . . . 153, 154
ICCPR (UN International

Covenant on Civil
and Political Rights)
Art 14(3)(g) . . . . . . . . . . . . . . . . . . . . . . . . . . 253
Social Action Programme 1974 . . . . . . 151, 153

Social Chapter
See Treaties: European Union 1992: Protocol
on Social Policy
Industrial Democracy
White Paper 1978 . . . . . . . . . . . . . . . . . . . . 153
Social Charter 1989 . . . . . . . . . . . . . . . . 160, 220,

Social Charter, European . . . . . . 221, 223, 288
International Convention
on Economic, Social
and Cultural Rights . . . . . . . . . . . . . . 213, 284
Telecommunications Act 1984

ss 1215 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 351
Title on Employment 1999 . . . . . . . . . . . . . . 154
xx
Table of Legislation
Title VI . . . . . . . . . . . . . . . . . . . . . . . . . 160, 169
TEU (Treaty on European

Union)
Paris 1951 . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 157
See Treaties, European Union 1992
Rome 1957. . . . . . . . . . . . . . . . . . . . . . . . 139, 157,
Trade Descriptions Act 1968 . . . . . . . . 291, 312
159, 167, 168
Transfer of Undertakings
Directive 77/187 . . . . . . . . . . . . . . . . . . . . . 156
Art 117 . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 24
Treaties:
Unfair Competition Act 1909 . . . . . . . . . . . 306
Amsterdam 1997, draft . . . . . . . . 140, 142, 152,
United Nations Charter . . . . . . . . . . . . . . . . 268
154, 161,
168, 170, 238
Universal Declaration
of Human Rights 1948 . . . . . . . . . . . 268, 276,
Art 118 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154
279, 284
Art F.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161
Arts 2225 . . . . . . . . . . . . . . . . . . . . . . . . . . . 268
European Union 1992 . . . . . . . . . . . . . . 140, 151,

158, 160, 165
Vredeling Directives . . . . . . . . . . . . . . . . . . . 153
Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150
Art 3B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142
Water Industry Act 1991

ss 1316 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 351
Art 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . 141, 151,

157, 160
ss 3235 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 355
Art A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142
Working Time Directive . . . . . . . . . . . . . . . . 24
Art F (Title I) . . . . . . . . . . . . . . . . . . . . . . . . 160
Works Council Directive

94/45/EC
22 September, 1994 . . . . . . . . . . . . . . 154, 155,
Protocol on Social Policy . . . . . . . . 21, 151, 154,

160, 169, 223
156, 332
xxi
CHAPTER 1
THE CONSTITUTIONAL IMPLICATIONS

OF PARTICIPATION
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
Gewirth, The Community of Rights, p 84.

This argument is developed in greater length by the author in Choice and the Legal Order:
Rising Above Politics.
Eg, Drucker, Post-capitalist Society.
For the view that this reflects the core of EU law, see Judge Andrew Geddes, Protection
of Individual Rights Under EC Law, p 109.
various writings on categorical moral philosophy, not least in the book from
which the introductory quotation is taken.
THE LOGIC OF PARTICIPATION

Participation is taken for granted in a number of central spheres of social
organisation without its justification being analysed at deeper levels. Thus, for
instance, participation in political structures is assumed in all advanced
democracies, but the concept of democracy does not receive close analytical
attention. Participation is honourably mentioned in cultural exchanges, in
political rhetoric and in any number of international treaties, treatises and
compacts. Its origin and justification are sometimes sought in the inalienable
rights of humankind, in the identification of those traits which mark out the
free, unstained, human personality. This justification is more than attractive; it
is compelling. But, whatever position one takes on this, it must be allowed
that the standard claims made in standard democracies, if examined
immanently, always point in the same direction. If we judge most self-styled
democracies by their own standards, we will arrive at roughly the same
justification for the adoption of human rights.
If human beings must be free to make their own choices in their own
ways, then their choice of political organisation is crucial. However, for that
choice to be real, it must be exercised at the lowest or most immediate level
that makes organisational sense. To put it another way, participation in the
political sphere is a right at all levels of government and not merely at the
central level. This is a belief that is beginning to assume the status of a
dominant ideology. The arrangement and delivery of public services will vary
across time and place and so will, therefore, the balance between direct and
representational democracy. It is improbable that we, in the advanced
democracies, have struck the right balance between the two at this time, as
witness the growing clamour for some version of community politics which
is examined in this book by Stuart Weir. Moreover, representative
government is, to some extent, a regrettable necessity and not something to be
preferred a priori. Self-expression, self-help, self-government and relative
autonomy are all preferable. Representative government (in the form the
context demands) is merely necessary to allow individual self-expression,
though, as will be argued, that self-expression ultimately can occur only in the
context of others and otherness. The point was well made by GDH Cole in
1920:
... the elector is called upon to choose one man to represent him in relation to
every conceivable question that may come before Parliament, whereas, if he is
a rational being, he always certainly agrees with one man about one thing and
The Constitutional Implications of Participation
with another about another, or at any rate would do so as soon as the

economic basis of present class divisions was removed.5
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
Cole, Guild Socialism Re-stated, p 32.

Eg, Serviceteam, a Lambeth based private sector company with a public service ethos.
3
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.
PLAYING THE MARKET

A detailed argument for markets will not be made here, but assumed as an
ideal typical form of human choice.8 Of course, market choice is frequently
distorted in contemporary organisation, as may be seen from, for example,
Professor Mirrlees work on asymmetric information, but this is another
matter, though one which requires remedial action when practice deviates too
far from the ideal typical form. The overblown claims of the State to plan the
nations affairs, even if morally permissible, have become increasingly
threadbare. The resultant scepticism about the State is powerfully expressed
in Kevin Dowds libertarian contribution to this book. We are only just
beginning to understand the limits of the possible in terms of collective action,
and there is likely to be a long, slow, learning curve before confidence in the
State returns. In these circumstances, the market was bound to come back into
fashion, even if there are markets and markets, with some merely serving to
dignify extant, non-governmental, power configurations.
However, most will agree that one basic human capacity is to choose
lifestyles among alternatives, and the market, at its best, is one of the most
effective ways of liberating that choosing process. This is quite apart from the
fact that the competition inherent in market forces lends added spice to the
drive fully to express our talents. The market is, then, a device through which,
as a community, we can channel our energies in the direction of autonomy.
Insofar as it offers the individual a range of meaningful and worthwhile
options, then the market succeeds. If it does not offer such options, then the
prevalent economic arrangements deserve further scrutiny and should be
redesigned as appropriate. On one thing most are agreed that one of the
7
8
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
primary responsibilities of government is to ensure that markets are and

remain highly competitive.9 It is widely accepted that sustained economic
success depends on the establishment of a competitive market economy. What
is less frequently noted is that this can normally be achieved only by social cooperation.10 Such co-operation, at the political level at least, probably requires
the building of defensive alliances which can make effective regulatory
interventions.
To exclude individuals from being effective market players is to devalue
their citizenship. The argument for a night-watchman (or at least a nonintrusive) State is, after all, premised on the ability of individuals to choose
how to manage their own lives by voting for their preferences as consumers,
as self-providers, as cultural and artistic beings, and so on. The teasing
question seems, however, to be this. If as citizens we are entitled to choose our
political structures, to engage in the shaping and delivery of public services,
and to play the worlds markets, then it is unclear why the right to participate
equally (whether through representatives or more directly) in other dominant
socio-economic formations should be denied. For example, the link between
being a consumer and exercising anything resembling control over large
private corporations is so tenuous as to be meaningless. There are, in other
words, more or less private fiefdoms, exemplified by the large corporations,
which are controlled by the few in a way which deeply touches the lives of the
many, without the latter having any real powers of participation. This is true
even if we take into account the role of the many as investors through
institutional arrangements.
Being a market player is one thing, but being a victim of the random needs
of power configurations is another. Gewirth reminds us that human beings
are the ends for which society, including the productive process exists. He
adds:
None of this is meant to deny that government should be concerned to invest
in human capital for the sake of economic growth. But, such growth is
valuable, in the final analysis, because of the contribution it can make to the
well being of individuals and, especially ... of those individuals who cannot
maintain their basic well being by their own efforts.11
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
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
Quoted in Howard, The Death of Common Sense, p 166.

Cole, Guild Socialism Re-stated, p 14.
See the history of the maxim in Gewirth, The Community of Rights, n 37.
This aim was set out in a Consultation Paper sent by the TEC National Council to its 81
local bodies in England and Wales.
6
the biggest multinational needs allies and partners. Among the most reliable is
the Nation State.17
The creation of participatory institutions at this highest level is hugely

complex, but it is a challenge which will have to be met, with regional
groupings and alliances almost certainly playing a central role. The issue of
stakeholding arises, of course, and also the problem of the global markets
potential for obstructing political solutions. If participation is right and if the
will to bring it about is there, then at least part of the answer seems to be to
form regional defensive alliances such as the European Union (EU) and the
North American Free Trade Association. The World Trade Organisation
(WTO) (formerly the General Agreement on Tariffs and Trade) may also
assume a larger, positive role. The possible contribution of the EU is
extensively examined in this book by Kevin Featherstone and Ian Ward. In
any event, we need to be reminded that, in terms of moral imperatives,
ought implies can. The proposition which I adopt is that we need to work
on the ought first and then feed in the practical cans as the context allows.
At the moment, the most important agencies seem to be pointing in
opposite directions. For example, the Organisation for Economic Co-operation
and Development has strongly, if for the moment unsuccessfully, promoted
the Multilateral Agreement on Investment (MAI) which appeared to be set on
outlawing: all restrictions and controls that national governments might wish
to impose on foreign investment. We are, one of its leading negotiators
boasted: writing the constitution of a single global economy.18 If its critics
worst fears had been realised, MAI would have allowed multinationals to sue
national governments for any profits lost through laws which discriminate
against them. It might even have put at risk international treaties on climatic
change, over-fishing and workplace and environmental legislation. On the
other hand, the World Bank seems recently to have abandoned its longrunning support for minimal government in favour of a new model based on
a strong and vigorous State. It lists the key tasks of government as including
investment in basic social services and infrastructure, providing a welfare
safety net, protecting the environment and establishing a foundation of law.
Markets and government are seen to be complementary.19
A brief word on regulatory regimes as an instrument for advancing
participation must be given here, though I shall return to this topic. The
criticism has been levelled at the privatised utilities that their regulators
operate in too secret a fashion and that they should perhaps be answerable to
new, non-executive boards, including consumers. Numerous suggestions for
17 Hutton, The State Were In, p 31.

18 Monbiot, A charter to let loose the multinationals.
19 World Bank, World Development Report 1991: The State in a Changing World.
7
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
the idea that consumer participation is advanced by open regulatory

structures.22
The limitations of natural justice in a UK setting are the products of
history. Natural justice was developed in a context of relatively narrow State
activities long before the industrial revolution had produced forms of civic,
social or private power which began to impinge on individual citizens in a
way which previously was practically the monopoly of the State. Over the
course of centuries, there have been legislative interventions in the field of
commercial and company law, social welfare and the like, which have usually
been reactive responses to felt injustice rather than deductions from first
principles. Constitutional first principles have, of course, never been the staple
diet of the British polity. Yet it is by no means self-evident that the
implications for participation of natural justices insistence upon a right to
represent ones own side of the story (as an instantiation of freedom of speech)
should not be drawn out over a larger canvass. Analysis of natural justices
implications might suggest that it is a constituent feature of a larger notion of
participation which ought to be clearly stated as a constitutional principle
guiding the recognition of an individuals rights even against a complex
swathe of social and economic counter-claims.23
The idea of equality has done important constitutional work elsewhere, for
example, in the Constitution of India. To quote from Choice and the Legal Order:
Rising Above Politics:
Similarly with the right to equality before the law. The Indian Cellular
Telephones case affords a valuable illustration of how such a basic claim can
generate such unexpected results. The right not to be discriminated against in a
tendering process is merely one example of the potential sweep of such a
consensual commitment, but the possibilities are many and dramatic and
would absorb race, gender, sexual inclination, age, disability, religious and
political persuasion and so on. The right would imply equality in the face of
State activity whether as an employee or mere citizen, it would embrace the
prohibition of discrimination on the basis of life style (often so important in the
past in areas such as social security entitlement) and comprises what is in fact
irrelevant considerations writ large but capable also of grinding exceedingly
small. Irrelevant considerations is a well established ground of judicial review
at common law, but it has never developed the broader sweep of which it is
capable. As a clearly enunciated constitutional principle it could make a
substantial contribution towards the liberation of human capacity.24
22 Wagstyl, Becketts monopoly game.

23 But see Gewirth, The Community of Rights, passim.
24 Lewis, Choice and the Legal Order: Rising Above Politics, pp 19596. Incidentally, the
Norwegians have a Discrimination Commissioner whose remit is not restricted by
reference to race, gender, etc. Any irrelevant consideration may be regarded as
discrimination. Note that the British Parliamentary Ombudsman has now extended his
definition of maladministration to include showing bias whether because of colour,
sex or any other grounds.
9
The potential of equality is recognised by Bercusson who rightly sees the

concept as much wider than its traditional understanding in terms of race and
gender. It is capable of embracing qualities more than equality, such as the
quality of family and working life, and the quality of human resources.25
Choice, a concept which unites the political left and right, assumes the
ability to act, and natural justice allows individuals to represent their own
interests, their version of events, their notion of freedom, and their notion of
well being to those who would have an impact on them. Even granted that
citizens concede, through a procedure for moderating collective freedom and
well being, decisions on the merits to the political/administrative process,
they do not forfeit the right to participate, either vicariously or, depending on
the nature of the impact, in personam. If given some measure of constitutional
prominence, these ideas are capable of contributing extensively to the
development of human rights thinking.
A larger issue needs to be addressed at this point. It is that the boundary
between the public and the private needs to be re-examined. This is
undertaken in this book by David Campbell. The view which I tend to adopt
is that the State (the constitution) has a general duty to allow the individual in
society to flourish. This requires us to respect the sanctity of the private
sphere, including making accessible goods such as housing, the right to family
life and a basic floor of social and economic rights.26 These are matters which
are extremely challenging at both the intellectual and political levels, for they
pose serious questions about the autonomy of most socio-economic
configurations. Such entities would have to satisfy constitutional expectations
concerning participation in order to be legitimate. Although, from one point of
view, the minimal State enhances individual freedom, non-State power
configurations cannot expect to be uncluttered by constitutional obligations.
There is no real conflict here.
PARTICIPATION AND COMMUNITY

Recent years have seen a renewed interest in concepts of community, not least
because of a previous generations excessive concentration on atomic
individualism. At root, this interest turns on little more than recognition of the
fact that human beings need to live in and through others. If that basic need is
not satisfied, then the full development of personality becomes impossible.
Correspondingly, we must give expression to this need, not only in terms of
25 Bercusson, European Labour Law, p 210.

26 Property is normally considered crucial in drawing up such a list, but it needs close
confinement and definition, lest, in the hands of the powerful, it becomes an
impediment to genuine participation. Gewirth, The Community of Rights, ch 5.
10
local political processes but by facilitating association in a variety of ways.

Gewirth again:
... just as human rights, through mutuality, entail community, so community,
in order to be morally justified, requires human rights. The relation of rights
and community, then, is one of mutual support.27
Many of the great Victorian mutual institutions were responses to

untrammelled industrialisation, which frequently tore apart human rights as
they are now understood. Building societies, housing associations, cooperative enterprises, trades unions, credit unions, and such organisations as
the Open Space Society and the National Trust all emerged through collective,
non-governmental, effort. These developments were motivated by a notion of
a common, public benefit which was to be gained from general rather than
private ownership. There is, therefore, an argument to be made that the State
has an obligation to assist, encourage and support voluntary organisations
which seek to improve the quality of life, to encourage comradeship and the
like. Even earlier, the need for collegiate activity was expressed through
membership of the mediaeval guilds, which were essentially local associations
of independent producers. As Cole points out, guilds were regulatory rather
than managerial.28
The States duty to encourage society to flourish can be performed through
any number of mechanisms, but the community group delivery mechanism is
particularly important. The potential of voluntary groups is explored in this
book by Nicholas Deakin and Tony Rees. These groups might undertake more
than the mere delivery of services if they were given, in proper recognition of
their role in fulfilling vital functions, a special standing in relation to the State
as a new form of para-State force. In fact, the relative autonomy of voluntary
and community bodies has diminished over recent times for reasons quite
distinct from the fact that the rights of organised labour, although retaining a
powerful universal appeal, have yet to find an acceptable form in todays
global markets. Nevertheless, voluntary associative conduct is an elemental
form of civil participation, and the resurgence of the voluntary or not-forprofit sector is beginning to raise issues of their overall responsibility and
accountability to the nation at large, and these issues are receiving attention
right across the industrialised world.29
It is for this reason that the Commission on the Future of the Voluntary
Sector was set up. Its report, Meeting the Challenge of Change: Voluntary Action
into the 21st Century, was published by the National Council of Voluntary
Organisations (NCVO) in 1996. The Commission suggested that a concordat,
in the form of a Code of Good Practice, be drawn up between central
27 Gewirth, The Community of Rights, p 87.

28 Cole, Guild Socialism Re-stated, p 43
29 Eg, the Industry Commissions Report on Charitable Organisations in Australia.
11
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
30 Deakin, Future prospects for voluntary action, p 63.

31 Commission on the Future of the Voluntary Sector, Meeting the Challenge of Change:
Voluntary Action into the 21st Century.
12
acts of self-expression. Not everyone will wish to take advantage of these

opportunities, but where they do they should have the right to do so.32
Proposals also exist to develop community action in order to confront the

issues of social and economic exclusion. For example, the London Voluntary
Service Council has proposed the establishment of a Civic Forum to shadow
the new Greater London Authority recently proposed by the Blair
Government. This would be comprised of representatives from the voluntary
sector, trade unions, the private sector, faith communities and local interest
groups, so that those representatives could feed into the Authoritys thinking
at a systemic level.
There inevitably is some tension between a bottom-up view of community
organisations and their top-down encouragement, especially since the latter
might be selective and non-pluralistic or competitive. Most would naturally
favour bottom-up emergence, albeit with resource-assistance offered by
traditional politics when necessary. However, this is almost certainly to
counsel perfection, and thought will need to be given to reinvigorating the
system of local government community development officers and
departments. Such thought can build on some successful experiments in the
1970s. Experience with tenants associations, housing management schemes,
and even neighbourhood watches testifies to the utility of partnerships
between central and local government and community organisations. This
experience is thoroughly reviewed in this book by Lucy Gaster. Though the
problem of social exclusion will not, of course, easily be solved even if local
forms of participation are encouraged successfully, transparency is at least
part of the solution, and it is to be hoped that freedom of information and
open competitive politics will go a little way to changing the overall culture of
politics and participation.
One further point. It is managerially inefficient to misunderstand the
needs of the community, so that prudence as well as democracy points up the
need for better channels of participation. Even so, a belief in pluralism and
experiment would lead to the encouragement of competitive politics at local
level, something that local government might find difficult, but something
with which it needs to learn to live. In other words, the encouragement of
grass-roots organisations should produce a spectrum of local activity, a
rainbow though not necessarily an alliance. Community bodies will serve
different purposes. Some will be oriented to service, some will be ginger
groups, some active campaigners, some engaged in constructive partnerships,
and yet others will wish to contest conventional wisdoms. This range of
groups, and their potential for enhancing participation, are described by Barry
Knight in Chapter 9.
32 Lewis, Participation, citizenship and the constitution, p 117.

13
PARTICIPATION AND THE ENVIRONMENT

As a coda to these thoughts on community, a word needs to be said about the
environment. At the time of writing, it is estimated that some 300 measures
have been adopted by the EU relating to the environment. By no means all of
them create rights for individuals, but that is not really the thrust of my
argument for participation. Many environmental directives are concerned
simply to instruct Member States to draw up rehabilitation programmes, take
measurements, designate areas for environmental protection or establish
modern technologies to promote a reduction in pollution. Others designate
environmentally desirable objectives, leaving it to the Member States to decide
how best to achieve them.33
As a World Bank study has recently shown,34 citizen activism has been at
the root of the modern environmental movements in both the industrialised
and the developing countries. Some of the major actors in this process include
local authorities, citizen and environmental groups, the academic and
scientific communities, business and industrial sectors, etc. Particularly since
the Earth Summit in Rio in 1992, the promotion of widespread public
involvement in environmental decision making has been looked at as a major
instrument in the quest for sustainable development and reform.
Environmental Impact Assessments (EIAs), which are required by legislation
to evaluate, mitigate and plan for the various environmental and social
consequences of development projects, are amongst the initiatives fostering
community participation in many countries. The idea of making public
involvement a core element of an overall strategy for sustainable development
was elucidated, inter alia, in Principle 10 of the Rio Declaration on
Environment and Development.35 Importantly, since the early days of the
European Economic Community, there has been a strong commitment within
what is now the EU to what has been termed a citizens Europe.36
However, commentators have not always been charitable about the UKs
commitment to environmental participation:
In some cases, such as Britain, a tradition of official secrecy and insider
consultation appears to be limiting widespread citizen participation ... while in
countries such as Norway (and other Scandinavian countries) political
traditions of widespread participation and consensus-building among various
stakeholders and interest groups have facilitated the effective incorporation of
33 Geddes, Protection of Individual Rights under EC Law, p 12.

34 Davis, Public Involvement in Environmental Decision Making.
35 Though see, also, UNECE, Guidelines on Access to Environmental Information and Public
Participation in Environmental Decision Making, as endorsed in the Third Ministerial
Conference, Environment for Europe.
36 Holland, European Community Integration, pp 6465.
14
citizens, environmental associations and local governments into the

environmental policy and decision making processes.37
There is evidence of limited access to both environmental information and

decision making, not least over the industrial and water pollution control
systems. This domination of decision making by insiders contrasts starkly
with the Norwegian capacity to integrate all sectors of the population into the
policy making process without significant social upheavals, conflicts or
disruptions.38
The situation, however, is not one of unrelieved gloom. Local authorities,
under the encouragement of the Local Government Management Board, has
recently been active in promoting Agenda 21, the Rio Summits strategy for
sustainable development. What is significant is that the agenda is not seen as
being limited to narrow environmental issues, but embraces the social,
economic, cultural and political life of localities. The agenda covers the issues
which arise when a local authority negotiates its relationship with citizens in
general, so that new forms of local democracy are not an option when
implementing Agenda 21, rather: they are central and unavoidable. They
will, in turn, require action by national governments and the EU.
PARTICIPATION IN SOCIAL AND INDUSTRIAL LIFE

Let the right to form associations and groups and to engage in social action as
part of interactive nature be ceded. The State then has a duty to encourage
action in and rights within voluntary organisations, but there is a need to go
further and to argue for the right to participate in civil, social and industrial
organisation. Choice, action and participation are generic rights and can be
limited only by special justification.
Isolation is not a natural condition, and there are clear existential linkages
between being human and engaging in associative conduct. No unreasonable
that is, non-mutual impediment should impair the right to choose in
concert with others whose aims are shared. Not only must the State not inhibit
such associative conduct, but it has a duty to create or nurture the conditions
for associative possibility.
The present situation with respect to industrial participation is one too
greatly characterised by compulsion for dignity and signal to signal
bargaining in genuinely free markets. If the constitution were to speak of the
right to participate, buttressed, in this respect, by the right to associate and
accompanied by the States duty to encourage participation, we should be
37 Davis, Public Involvement in Environmental Decision Making, p xi.

38 Ibid, p 47.
15
moving in the right direction. Under such circumstances, an ombudsman or

court could find that, in any given situation, not enough progress had been
made, and might recommend the kinds of remedies used by, for example, the
Indian courts. These have been shown to be much more flexible than those to
which we in the West are accustomed. For example, fact-finding commissions
have been established which report back to the court, government itself has
been required to issue detailed progress reports, and the like.39 This is to
envisage a role for the court/ombudsman as, inter alia, a social auditor. We
should not be deflected by anti-court sentiments which satirise the legal order
as being simply about the brutal business of imposing simple-minded
sanctions. It is gratifying that there is some evidence from unexpected
quarters that these unfashionable ideas about the potential of the legal order
are being picked up. Rights to fair treatment in health and social care are at
last being developed by radical thinkers who have begun to argue for the
monitoring of such rights through the Social Services Inspectorate, Audit
Commission and/or ombudsman systems.40
By all common and standard measures of human rights and choice,
individual citizens must be able to demand not only dignity (the unpacking of
the implications of which is assisted by examination of various International
Labour Organisation standards), but also the right to have ones personal
choice feed into the collective (that is, the firms) decision making. It is
inescapably the case that the untrammelled capitalism does not operate
through true consent. Even if there is tacit consent to pure market forces,
then, since capitalism is never pure in that way, it must follow that regulating
so that the rights of labour have substance must be legitimate.
This is an area which is bound to be controversial, and yet the underlying
human rights are easy enough to stake out and suggest no obvious limitations
imposed by other than human rights needs. No consistent philosophy can
presently be detected in the position over the rights of labour. There has been
no attempt to work through the logic of respect for mutual choice in capitalist
relations, and, of course, no deeper inquiry into the preconditions for choice to
reign in the workplace or market-place. All of this makes it the more necessary
for the constitution to provide the opportunity for ensuring that, as a nation,
the implications of choice and human rights in all aspects of life are worked
through.
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
STAKEHOLDING, COMPANY LAW

AND EMPLOYEE PROTECTION
The foregoing argument poses important questions for the now fashionable
concept of stakeholding, for the reform of British company law and for a reexamination of employee protection. These are all issues which are
extensively dealt with elsewhere in this book by John Parkinson. The way my
overall argument embraces those issues needs briefly to be outlined. First, it is
important to remind ourselves about the larger concerns which give rise to
speculation about these areas of our social life. Cole again provides the
continuity. Although status meant, for very long periods of English history,
marked inequalities, nevertheless, the privileged aspired to a loose, political
enfranchisement reflected in distinctly political arrangements buttressed by
degrees of autonomy within a number of distinct social spheres. But times
change:
There was a time, away back in the Middle Ages, when the State was only one
of a number of social institutions and associations, all of which exercised,
within their more or less clearly defined spheres of operation, a recognised
social power and authority. During the period which followed the close of the
Middle Ages, these other bodies were for the most part either swept away or
reduced to impotence; but the effect of their disappearance was not, except to a
limited extent for a time in the 16th and 17th centuries, the assumption of their
powers by the State, but the passing of the social purposes which they had
regulated outside the sphere of communal regulation altogether. Thus, the
ground was cleared for the unguided operation of the Industrial Revolution in
the 18th and 19th centuries, and the vast structure of modern industrialism
grew up without any attempt by Society, as an organised system, to direct it to
the common advantage.41
In other words, there was a long-standing assumption of participation in the

social enterprise, represented for some little time by the guilds which were not
confined to the economic sphere but were the common form of popular
association. 42 Industrialisation saw the relative decline of genuine
participation in social organisation. There was a democratic commitment to
grand politics, whose forms and institutions, were, unfortunately, not
updated to honour the sentiments underlying that commitment.43 The market
came to be regarded as the economic equivalent of the democratic political
process. Although, at its best, the market can make a genuine commitment to
personal liberation, it is often not at its best. It can become dominated by
41 Cole, Guild Socialism Re-stated, p 29.

42 Ibid, p 42.
43 Lewis and Harden, The Noble Lie: The British Constitution and the Rule of Law.
17
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
44 Cole, Guild Socialism Re-stated, p 14.

45 Thurrow, The Future of Capitalism.
46 TUC, Your Stake at Work, p 10.
18
constitutions in particular, to restate ancient truths and beliefs and instruct

those with temporary influence over our affairs to do their utmost to put the
empirical world back in touch with those truths. Reason, autonomy, and
context-dependency should be in a constant state of dialectical discourse. It is
important to note just how contemporary Mill sounds when placed in the
middle of debates about rationality crises and New Public Management
(NPM). Experiment, self-discovery and transparency (what Mill simply called
free speech) are suddenly the buzz words of NPM.
New Zealand is perhaps the leading example of the positive potential of
NPM. In New Zealand, it is understood that not only is maximum
transparency necessary for efficient and effective policy choice and
performance, and that involvement of the public will increase the range of
information available, but that public management techniques need to take
account of the difficulties of long term, central planning. The distinguishing
features of the new policy strategies are known as SRAs and KRAs:
The distinguishing features of SRAs and KRAs are their selectivity and
flexibility. For all of the reasons that doom long term central planning,
particularly the complexity and the uncertainty of the future, it is not possible
to come up with a complete set of higher level strategic objectives, finely
specified. The best we can do is pick out a few objectives, which given our
understanding of the systems in which they are embedded, are most likely to
exert the desired leverage on those systems.47
Attention must be paid to a number of thought provoking experiments in

stakeholding. Unipart is an interesting example of a firm the result of a
management buy-out which believes in long term partnerships with
suppliers and employees. Unipart is moving forward without traditional
trades unions while others, most notably the Trades Union Congress (TUC),
see the latter as being an essential conduit for channelling collective concerns
into the wider stakeholder debate. In opposition, the Labour Party seemed to
be in touch with these ideas, arguing that trades unions should embrace
change and shape it for the benefit of all.48 The Commission on the Future of
the Voluntary Sector has argued that funders of voluntary sector projects
should respect the diversity of the voluntary movement and actively seek to
support experiment. Furthermore, schemes should be piloted to allow
voluntary sector leaders to be placed on business boards as non-executive
directors and, in their pursuit of the greatest value, companies should
develop long term relationships with the voluntary sector based on commonly
identified goals.
47 State Services Commission, Strategic Management in Government: Extending the Reform

Model in New Zealand, p 5.
48 Derek Foster, Shadow Chancellor of the Duchy of Lancaster, speech at the IPMS
Conference.
19
At the time of writing, the Chancellor of the Exchequer has announced an

inquiry into how business can introduce democracy into the workplace and
give staff the chance to influence company strategy. There is some evidence,
he believes, to indicate that employee stakeholding results in more jobs,
productivity, pay and profits. Much more radical suggestions exist. For
example, Peter Drucker, a well known supporter of pension fund socialism,
has promoted the search for a simple compulsory scheme in which every
adult pays into a portable pension fund which could be drawn on for house
purchase as well as pensions. The huge sums of money made available would
boost markets, with contributions not being counted as taxable since they
would go directly into personal accounts. Other ideas for a substantial reorganisation of the regulatory regime include the American R-Corps and RFunds aimed at producing responsible corporate and financial behaviour,
personal career funds, formal reviews of management performance by nonexecutive directors as an alternative to the hostile takeover as a means of
ensuring managerial accountability, and the like. Though there is no doubt
that experimentation must be encouraged, in every context we are confronted
by problems of contingency, newness and seeming impotence. The only
response is to hold on to primary principles, to work at the empirical level and
to encourage experiment.
In the UK, much of the experimentation at local level is being encouraged
by the Local Government Management Board through the Local Agenda 21
planning already mentioned. This initiative is already showing promising
returns, with partnerships emerging in several local authorities. Davis is clear:
While not all practitioners consciously view themselves as doing EIA, there is a
great deal of experimentation throughout Western Europe in this area which
has implications for the development of best practice in terms of EIA theory
and practice.49
COMPANY LAW AND EMPLOYEE PROTECTION

This leads us ineluctably to the twinned issues of company law and employee
protection. Although stakeholding is about more than industrial and financial
life, there is no need to restate the larger issues of autonomy at this point.
Rather, it is useful to ask the a middle range question: what are companies
for?
Leaving aside the fact that most would accept that prosperity is better than
poverty, and assuming that current forms of industrial organisation are best
placed to achieve prosperity, we still must recognise that prosperity is merely
a means of fulfilling individual autonomy. Individual autonomy is still the
49 Davis, Public Involvement in Environmental Decision Making, pp xii, 3435, 60.

20
main concern, although commitment to autonomy in itself tells us little about

what constitutes a legitimate distribution of prosperitys spoils. One
determinant of distribution, linked to autonomy, is consent to the decisions
about distribution which are made, and this can be established only through
some form of participation in those decisions. The claim that moral principles
should be regarded as intruders in the industrial sphere cannot be allowed.
That established, let us mark out some of the present features of companies
and, in particular, British company law, which relate to participation. Others
have developed these issues with more finesse, but it is as well to fit a few of
them into the general picture.
The legal position of employees, for the moment at least, 50 is not
compatible with personal dignity or autonomy. Their participation in the
industrial enterprise, directly or indirectly, makes them entirely subordinate.
For many years, redundancy has been a constant threat, against which
employees have been more or less powerless. Recognising this, the EU has
sought to protect employees during a take-over. Hence, the Business Transfer
Directive adopted in 1977. Its existence, for all its weaknesses (and it is
important to note that it does not apply where a company changes hands
through a purchase of shares, although this is the way in which almost all
take-overs occur in the UK), is a tribute to arguments of the sort being made
here. It is useful to note the protective laws requiring the negotiation of social
plans to mitigate the effects of redundancies in several European countries.51
The harshness of UK company law in failing to protect employees is
legendary, while the sound without real fury about corporate governance in
recent years testifies to the fact that companies are not, in any very direct
sense at least, promoting the Commonweal. Too few directors face regular reelection, institutional shareholders are inert, and individual shareholders face
expense and difficulty in proposing resolutions at annual meetings. It is trite
to remark that company law elsewhere is, to a greater or lesser extent, aware
of its wider obligations. The German Constitutions concern for employees is
well known, while the Maastricht Social Chapter, for all its manifest
weaknesses thus far, has been the cause of considerable controversy. Moves
on a EU company statute are currently stalled over worker rights.
Whatever the eventual outcome, it seems clear that change is in the air, as
witness the establishment of the Centre for Tomorrows Company, set up by
the Royal Society of Arts to further the recommendations of the 1996
Tomorrows Company Report. These included company boards of directors
50 Changing technology may ultimately mean that labour becomes a relatively

unimportant commodity in industrial production. If and when that occurs, the State
will have to address itself to means of providing material disbursements to assist the
development of personal autonomy. The ownership of capital, I believe, could not
then continue in its present form.
21
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
It cannot be right to grant autonomy and more than autonomy to

configurations of capital with the power to destroy careers and communities
52 Jackson, FT com.guide to: corporate governance.

54 Lewis, Choice and the Legal Order: Rising Above Politics, p 194.
22
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.
THE CITIZEN AS EMPLOYEE

No attempt will be made here to analyse the general state of employee rights,
but rather I will confine myself to fitting the position of employees into my
general argument. The right to associate seems a useful place to start. Leaving
aside the fact that it is recognised as fundamental in so many constitutional
texts, the right to associate is one of the most self-evident propositions
following from social co-existence. It is an elemental form of participation.
People need to express themselves collectively as well as individually in order
to make common cause and a common case, to pool their resources, and freely
to associate in a common endeavour. The case was put in 1948 by Lord
Beveridge:
In a totalitarian State or in a field made into a State monopoly, those
dissatisfied with the institutions that they find can seek a remedy only by
seeking to change the Government of the country. In a free society ... they have
a different remedy; discontented individuals with new ideas can make a new
institution to meet their needs. The field is open to experiment or failure.55
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
55 Beveridge, Voluntary Action, p 60.

Voluntary Action into the 21st Century, para 5.5.2.
23
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.

58 Bercusson, European Labour Law, pp 34647.
59 Ibid, ch 15.
24
THE SOCIAL MARKET ECONOMY

As I will argue more fully in Chapter 12, some of the post-Second World War
constitutions, including the German, the Indian, and those of the former Iron
Curtain countries, display a degree of suppleness and subtlety lacking in
earlier times. Germany boasts a social market constitution, while India has its
celebrated directive principles of the Constitution which nestle just below the
Bill of Rights and yet enjoy a status higher than ordinary laws. Article 38(1),
for example, reads:
The State shall strive to promote the welfare of the people by securing and
protecting as effectively as it may a social order in which justice, social,
economic and political, shall inform all the institutions of national life.
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
participation, accountability and intelligibility have been at the forefront of the

minds of the constitution makers.62
All this chimes well with the increasing recognition around the world that
changing circumstances call for changing responses, to which witness the
former US Secretary for Labours determination to take up arms against
sweatshops, both in the US itself and in the territories of its suppliers, a
response that needs greater formalisation if the global economy is not to
continue to leave millions of disaffected workers in its train.63 The principle
is, of course, what matters, although recent surveys indicate that, at least in
the United States, access to cheap labour is a rapidly decreasing priority for
manufacturing companies investing abroad.64 This coincides with signs that
the UK is beginning to shift on EU social policy, with a number of blue chip
companies having already begun to comply with aspects of the Social Chapter
even before the election of a Labour Government. In other words, we have the
arguments and the pressure is mounting. What now is needed is an
institutional and preferably constitutional response.
This is not to downgrade individual responsibility. On the contrary, as
Gewirth argues, while the State must seek to enable persons to be productive
agents on their own behalf: it is a serious error to confuse the desirability of
this aim with the belief that it is already fully within the powers or abilities of
the persons or groups in question. He is in no doubt that this entails positive
legal rights.65 It is worth noting that, leaving aside the former communist
countries, social and economic rights are now established in the constitutions
of Spain, Portugal, Greece and the Netherlands, which have all influenced the
EUs Community Charter of Fundamental Social Rights of Workers in 1989.66
A commitment to broad participative rights could well be reflected in the
directive principles of constitutions, their preambles, and perhaps, to some
extent in Bills of Rights, which would leave it to successive governments to
work out, with judicial assistance, the most appropriate way to secure those
rights.67 In any event, my argument is that participative concerns, some of
which will need at any given time to be ranked, are genuinely constitutional
concerns. Protecting the rights of human beings within a social setting of their
own or their predecessors creation is pre-eminently a task for the constitution.
All this suggests that, at a time when the sense of personal and national
62
63
64
65
66
Sacks, Due process in making a constitution, pp 123738.

Wolf, The dilemma of inequality.
de Jonquieres, Cheap labour loses its allure.
Gewirth, The Community of Rights, pp 5, 59.
For an extensive treatment of this topic, see Bercusson, Fundamental social and
economic rights in the European Community.
67 There may be some mileage in considering the former US practice of public interest
litigation, which would advance participation at the level of the courtroom. More
seminally the argument seems to be for a constitutional principle of equality as citizens,
and not just equality before the law.
26
identity is not as secure as it once was, a restoration of national instincts and

sentiments is called for in circumstances where raw politics must learn to
accept second place.
In the interests of clarity, it should be said that participation does not
avoid the problem of scarce resources. Human rights, including the right to
participate, is one thing. The staking out of wants is another. Whereas
participation in the wants argument must not be circumscribed, in some
circumstances it may ultimately only be expressible through voting
procedures. These matters require further attention and there is no advantage
in being dogmatic at this juncture.
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.
68 OFTEL, Improving Accountability.

69 Lewis, Participation, citizenship and the community.
27
THE LEGAL AND CONSTITUTIONAL ORDER

In the days of the socialist thinkers such as Tawney and Cole, there was much
discussion of the extra-constitutionality of capitalist organisations. We do not
have to accept their analysis of where these organisations fit into the larger
commonweal (for example, they represented the same class as holds social
and economic authority in the community and political authority in the State),
to observe that this discussion was, in many senses, extremely acute.
Starting, as I have, with a claim for autonomy, I soon moved towards the
position where participation is seen as an essential expression of that
autonomy. I pointed out that this meant not only participation in the political
process (broadly conceived) and as (reformed) market player, but in all other
salient aspects of interpersonal expression: community and social life, the
relations between labour and capital, and so on. To a very real extent then,
leaving salient aspects of collective life free-standing, without direct respect
for individual autonomy, is unacceptable and a matter for constitutional
redress. This is why reworked fundamental human rights lie at the heart of
constitutions. What is needed is a redefinition of social, industrial and
financial institutions and patterns in order to identify potential methodologies
for advancing participation, either directly or through representative
institutions. However, at the apex of the constitution we ought to be able to
work at a new level of generality, working in the belief that fundamental
principles can be translated, through exhortation, experiment, research and
novelty, into the whole range of publicly approved and/or facilitated
activities. This obviously involves an expanded role for the legal order.
To paraphrase Nonet and Selznick, the actions of political and other elites
are not self-legitimating. The question whether those elites are acting in the
larger public interest requires a separate assessment.70 That assessment must,
ultimately, be for the courts. Personal autonomy presently requires, as it
always did, a high degree of legal autonomy manifested in the separation of
the guardians of the constitution from the supposed authority of those who
presume to act under it. Courts should not, of course, be the bread and butter
of our constitutional diet, but there is no doubt that they should be the icing
on the cake:
The case being made is that a new constitutional settlement should be
comprised of both a Preamble stating our beliefs about ourselves in very
general terms, primary constitutional rights (albeit a more extensive list than
normally envisaged, embracing, for example, equality, natural justice,
participation, etc) and a layer of directive principles to borrow the Indian
phrase. The social and economic rights should probably be straddled between
the primary rights and the directive principles. Over a period of time these
70 Nonet and Selznick, Law and Society in Transition: Towards Responsive Law; and Lewis,
Participation, citizenship and the constitution, p 117.
28
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.
71 Lewis, Participation, citizenship and the constitution, pp 11718.

72 The discourse would be greatly enhanced by lawyers specialising in individual
disciplines taking the new constitutional claims on board.
73 Though see, now, Bynoe, Rights to Fair Treatment: A Practical Study to Develop New Rights
for People Seeking Health or Social Care, who argues for fair treatment in the process by
which individuals seek fair treatment. This, significantly, argues for customer views
being taken into account in deciding about access or planning provision to meet their
needs. The objective is to promote individual autonomy and choice.
29
It does not seem logically possible to deny arguments in favour of

autonomy and, therefore, of participation. They lie at the core of human
personality and, as such, lay special claim to constitutional status. That
making the world a better place is difficult is not an argument for denying
that the attempt to do so should be made. Accepting the limits of the possible,
the legal order is nevertheless capable, through flexible analysis, effective
remedies, and reformed procedures, of making a crucial contribution. At
present, in the absence of an appropriate institutional impetus, we do not even
understand the limits of the possible.
30
CHAPTER 2
PARTICIPATION IN CIVIL SOCIETY
Kevin Dowd
PROFESSOR DOUGLAS LEWIS ON PARTICIPATION

In the previous chapter, Douglas Lewis has grappled bravely with many of
the key constitutional, social and political questions of our time, and manages
to bring them together in a uniquely thought provoking and provocative way.
I find myself agreeing with him on a number of points, the most important of
which is that we both start with the absolute primacy and inalienability of
individual human rights, and following from this premise, on the
corresponding need to ensure that all economic, social and political
institutions are, at the very least, compatible with those rights. We also agree
on the superiority of decentralised over centralised institutional arrangements,
and we both share serious concerns about the tendency over the last two
decades to centralise power in this country in a secretive and often
unaccountable central government. Movements to break Whitehalls grip and
devolve powers back towards the people are therefore to be welcomed. So,
too, is recent talk of community politics, stakeholding, and so forth provided
it does actually lead to worthwhile reforms and is not just more hot air or,
worse, would lead to yet further violations of the individual human rights.
Nonetheless, whilst we agree on the primacy of human rights, we disagree
on what those rights actually are. Because of this, we also disagree on what
they imply and, most particularly, on what they imply for the relationship
between the individual and the State. However, before proceeding further, I
should emphasise that my disagreements are not so much with Douglas in
particular, as with the general philosophy of which he is such a prominent
exponent. I should also add that I have no illusions about which philosophy
would currently win out in a popularity contest. Douglas articulates, and
develops, much of the leading edge thinking on constitutional issues, and
most constitutional (and many other) scholars would largely agree with him.
By contrast, I support a radically different philosophy and, therefore, when
engaging in a discussion of constitutional issues, find myself cast somewhat in
the role of the ghost at the banquet. To make matters worse, this particular
ghost has no expertise in those issues, and the expertise he does have, such as
it is, is in the black arts of the dismal science.
31
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
Participation in Civil Society
then appear and sweep these useless rights away, and the danger is that he
will sweep away the good ones as well.
CIVIL SOCIETY: AN INDIVIDUALIST VIEW

The only alternative is to abandon positive rights entirely and work on the
basis of negative rights alone. So what are our negative rights? The answer is
the classic libertarian one: that each individual or group of individuals is free
to do as he or they wish, regardless of race, gender, religion or any other
distinguishing characteristics, subject only to the constraint of not violating
the equal rights of other individuals or groups of individuals.1 This right to be
free is also inalienable and can, I believe, be grounded in a theory of natural
rights.2
This position has some far-reaching implications. If no individual or group
has any justification for violating the equal rights of others, then the State too
has no such right.
In the words of Murray Rothbard:
... the libertarian refuses to give the State the moral sanction to commit acts that
almost everyone agrees would be immoral, illegal, and criminal if committed
by any person or group in society. The libertarian insists on applying the
general moral law to everyone, and makes no special exemptions for any
person or group.3
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
Boaz, Libertarianism: A Primer; Friedman, The Machinery of Freedom: A Guide to a Radical

Capitalism; and Rothbard, For a New Liberty: The Libertarian Manifesto.
Eg, Miller and Steinbauer, A new defence of natural rights.
Rothbard, For a New Liberty: The Libertarian Manifesto, p 24.
33
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
Economic defence of anarchy

This individualist position can be justified in a variety of ways,6 which are by
no means necessarily the ways most often associated with that position.7 One
of the more compelling justifications is in terms of economic theory. In
economic analysis, the key criterion that determines whether any policy or
institution is justified is that of Pareto optimality, or efficiency. A policy (or
institution) is efficient (and so justified) if it is not possible to make anyone
better off without making someone else worse off. Policies and institutions are
therefore justified in economic terms if they lead to efficiency, and not justified
otherwise. If I wish to establish that a particular institution is justified, I
therefore need to show that an economic outcome without that particular
4
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
institution is Pareto dominated by an outcome with that particular institution.

This usually comes down to an issue of whether or not one can demonstrate
market failure, with the justification for any given policy or institution that it
corrects for (that is, represents a Pareto improvement over) some failure (for
example, such as the generation of inefficient externalities) that would
otherwise occur in the absence of the institution being considered.8
However, whilst economists are generally agreed that this is the correct
way to think about whether State institutions are justified, nonetheless most
economists also regard the justification of the State as obvious (that is, they
have actually given very little thought to the issue). Yet this position, like
many other obvious ones (for example, such as the flatness of the earth), fails
to withstand close scrutiny. The weakness of conventional economic thinking
on this issue is best highlighted by examining those instances where the case
for State involvement is usually considered to be strongest in the provision
of public goods, law and order, and money and banking.9
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
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
Law and order

The provision of law and order is often cited as another textbook case of the
necessity of government involvement. However, when examined more
closely, it turns out that the private sector has both the incentive and the
means of evolving its own legal codes, and the means to enforce compliance
with them.14 Once again, there are also many historical cases of such private
systems of law and order, and they appear to have functioned well.15
Money and banking

The provision of a sound currency and a safe financial system is another area
where the need for State intervention has often been taken for granted.
However, recent work on private monetary and financial systems has
established that both of these can be provided and provided well in a
laissez faire environment without any government involvement. 16 These
claims are also confirmed by recent research on the relatively unregulated
systems of the past, which, by and large, provided both sounder currency and
stronger banks than we have had since the widespread adoption of central
banking systems in the early 20th century.17
12 Cowen (ed), The Theory of Market Failure: A Critical Examination.

13 This particular example was brilliantly discussed in Coase, The lighthouse in
economics. Some other examples are the interdependence of beekeeping and orchards
(Cheung, The fable of the bees: an economic investigation) and the provision of fire
protection and public leisure and recreational services (Poole, Cutting Back City Hall).
14 These claims are amply justified in, eg, Benson, The Enterprise of Law: Justice without the
State; Friedman, The Machinery of Freedom: A Guide to a Radical Capitalism; Osterfeld,
Anarchism and the public goods issue: law, courts and the police; Rothbard, For a New
Liberty: The Libertarian Manifesto; and Wooldridge, Uncle Sam, Monopoly Man.
15 These cases are further discussed below.
16 Dowd, The State and the Monetary System; Dowd, Competition and Finance: A New
Interpretation of Financial and Monetary Economics; and Selgin, The Theory of Free Banking:
Money Supply Under Competitive Note Issue.
17 These cases include, among others, the early banking systems of Australia, Canada,
Ireland, Scotland, Switzerland, and many of the state banking systems in the antebellum
US (Dowd (ed), The Experience of Free Banking).
36
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
THE UNDERMINING OF CIVIL SOCIETY

BY STATE INSTITUTIONS
Unfortunately, the growth of the State also leads to the undermining and,
indeed, destruction, of many of the institutions on which civil society
depends. These institutions deteriorate as the State establishes rival
institutions of its own, and these new institutions undermine the mechanisms
on which the older ones depend. A classic example is the undermining of
charitable institutions by state supported welfare systems.25 Without State
support, altruistic individuals have a strong incentive to support charities they
consider worthwhile charities to support the unemployed, unwed mothers,
and so on. The delivery of this charitable support also tends to be efficient
because the donors have strong incentives to vet those who ask for support
and discourage bogus requests for assistance, and also to ensure that those
who receive charity are weaned off it as soon as possible. However, at some
point the State intervenes to establish some social assistance system welfare,
social security, unemployment insurance, or whatever. Those who were
formerly recipients of charity are then told that they can now receive State
support as a matter of right, and therefore have much less need of charity than
they used to have. At the same time, donors no longer have the same
incentive to provide. After all, they are now providing anyway through the
tax system, and the earlier moral imperative the concern that if they do not
give, other people would go wanting no longer applies. They therefore cut
back on their giving, and charity gives way to taxpayer-funded support
programmes. Similar stories can also be told of the displacement of private
institutions that cater to education,26 health27 and other social needs,28 and of
their replacement by newer public sector rivals.
This displacement of private institutions has other insidious (and all too
apparent) effects. The creation of State entitlements leads the recipient to think
that he somehow has a right to live off other people, as if they owe him a
living and he has no responsibility to look after himself.29 For his part, the
taxpayer is now forced to contribute whether he wants to or not, and
regardless of his views on the uses to which his funds are put (so, for example,
those who oppose abortion are forced to subsidise abortions, and the like).
25
26
27
28
29
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
IMPLICATIONS FOR PARTICIPATION

Participation and the political process
So what does this individualist position imply about participation issues? One
obvious implication is that participation in the activities of any institutions
social, political, or whatever should be voluntary. If each individual is free,
then he is free not to participate, and the decision whether or not to participate
is for him alone. Forced participation violates that freedom, and is therefore
indefensible. In concrete terms, this means that there should be no forced
voting, no compulsory union membership, no conscription, no compulsory
savings plans, no legal tender laws, no laws against smoking pot and so on.
Logically, although many writers, even libertarian ones, are reluctant to
acknowledge the point, it also means no compulsory payments to the
government (that is, no taxation), an implication which, if implemented,
would deprive the State of the financial resources it needs to survive. Taken to
its logical conclusions, the principle of voluntary participation is, thus,
extremely destructive (and, I believe, rightly so) of existing State institutions.
Granted that individuals have the right not to participate in the activities of
State institutions, the next question is whether or not they should participate
in them. Obviously, this is an issue for each person to decide as they see it.
Does one participate in dealings with State institutions, even though one
might regard them as illegitimate, in the hope of making the best of a bad
situation? Alternatively, does one refuse point blank to participate, so as to
emphasise ones freedom and deny State institutions any excuse of
30 Murray, Losing Ground: American Social Policy 195080; and Tanner, The End of Welfare:
Fighting Poverty in the Civil Society.
39
legitimacy? This is a difficult and highly controversial issue, and different

libertarians have given different answers to it.31 Some, therefore, participate in
State institutions (albeit reluctantly, and perhaps under duress) whilst others
do not. The argument for participation is the pragmatic (and not in itself
unreasonable) one of making the best of it (for example, by voting for the least
anti-libertarian of two political candidates). Most of us also participate under
duress by paying our taxes (although some heroic anarchists, such as Thoreau,
have steadfastly refused to pay taxes and been persecuted for it).
However, participation also has its dangers. One danger is that
participation strengthens the State institutions to which one is opposed, but
there is also the associated danger that participation can corrupt the person
who participates:
The main tragedy of political government is that few people realise it is an
immoral and impractical institution They have been conditioned to accept
government as a natural part of their environment. After being raised in a
culture in which politics is the norm, and after attending years of public
school and being taught that political government is a necessary component of
society, most people place government in the same category as the weather
something they complain about but cant change ... Most people are capable of
high values and responsible behaviour, but once they enter the seductive
garden of politics, they no longer notice that its wonders cannot be reconciled
with individual responsibility and their own personal moral values of honesty
and hard work ... The main tragedy of political government is not only that the
voters are the ones pointing the gun, but, most importantly, that the indecency
of this act is veiled from them by the political process ... The secret ballot and
the use of majority vote obscure the fact that it is the struggling family next
door or the bachelor down the street who are being threatened at gunpoint if
they do not fill the governments coffers or follow its mandatest ... but the
structure of politics permits this to be done anonymously, and allows the
supporters and perpetrators to conceal even from themselves the evil
nature of what they are doing.32
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
Participation a means to an end

A second implication of libertarianism for participation is that there is no
particular merit or demerit to participation as such, taken in the abstract. We
should not reify participation or think of it as good (or bad) in itself,
independently of the circumstances and interests involved. Participation is not
some kind of public good that should be promoted for the sake of it.
Participation (or non-participation, as the case may be) is merely a means to
one or more ends, and the only valid ends are those of the individuals
concerned. Participation is therefore good in so far as it furthers individuals
(legitimate) interests, and bad in so far as it detracts from them. And, again,
the judgment of whether participation in any particular instance furthers or
detracts from their interests is to be made by them alone. It is not for me (or
anyone else) to tell others to vote, go to church, buy in certain shops, or do
anything else in particular. Nor should taxpayer funds be used to subsidise
participation decisions one way or the other, especially as regards voting: if
other people feel that participation in any activity is good, they should put
their message across at their own expense, and not at the forced expense of
others.
Re-inventing civil society

A third implication relates back to the earlier discussion of the relative merits
of private and State institutions. I believe that there is a strong case that
private institutions are better suited to meeting social needs than the public
institutions that have largely displaced them. If any politicians genuinely wish
to do something useful, the best thing they can do is get out of the way and
undo past measures that have undermined the social institutions on which we
previously relied. The policy implications are then very obvious abolish the
Welfare State, and privatise education, social security, pensions, and so on.
Naturally, these implications will be anathema to socialists and their fellow
travellers, but they are actually not much different from a return to the
traditions of mutualism and self-reliance that were so commonplace a century
or so ago. Moreover, these traditions were actually a major part of the
ideological milieu from which the Labour Party originally sprang, and for
33 Lowi, Incomplete Conquest: Governing America, pp 2526.
41
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.
The erosion of the State

Finally, we should not forget that the world is changing very rapidly, and one
of the key trends is the erosion of the power of the individual State. One factor
behind this erosion is the increasing integration of the world economy, a
process which also undermines the ability of each State to control economic
activities within its own borders. Governments have less and less influence
over capital flows and interest rates, for example, and attempts to impose
direct controls over capital flows (for example, such as foreign exchange
controls) are increasingly futile and, indeed, counter-productive. Another
major factor behind the erosion of State power is the astonishing progress in
IT, which not only undermines State attempts to control information, but also
makes business more mobile and, therefore, increasingly able to move away
from hostile jurisdictions. A third factor, related to the other two, is the
increasing globalisation of international business. Ian Angell summed this up
nicely:
Individuals and companies are setting up large transnational networks that
pay absolutely no heed to national boundaries and barriers. The commercial
enterprise of the future will be truly global, it will relocate (physically or
electronically) to where the profit is greatest and the regulation least. The
umbilical cords have been cut; the global company no longer feels the need to
support the national aspirations of the country of its birth. Recently, this new
business paradigm was expressed most forcibly by Akio Morita, causing
uproar in Japan, when he announced that Sony was a global company and not
Japanese!34
States that are particularly abusive of individuals or corporations working

within their jurisdictions are therefore finding that they lose them. Thus, for
instance, a State with particularly onerous taxation will find that business flees
and it will gradually lose its ability to collect tax revenue. Similarly, States
with more enlightened policies find that they can attract mobile business from
abroad, and can thereby increase tax revenues even as they cut tax rates back.
States are, therefore, forced more and more to compete with each other, with
the shots being called by the ability of individuals and corporations to move
their business elsewhere. Increasingly, and potentially much more so in the
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
THE HYBRID CONTRACT AND THE MERGING

OF THE PUBLIC AND PRIVATE LAW OF THE
ALLOCATION OF ECONOMIC GOODS
David Campbell1
HYBRIDITY AND THE MERGER

OF THE PRIVATE AND THE PUBLIC
The concept of hybridity currently is being given sustained attention in any
other than an obdurately traditional discussion of the law of contract. The
private law of contract is recognised to, indeed, not be private, in the sense
that the individualism of the will theory now is accepted to be an
explanatorily and ethically inadequate juristic foundation for contracting, and
as such always open to criticism and modification from the communalist
perspective of welfarist or relational theories.2 On the other hand, with the
extensive reorganisation of formerly bureaucratically organised State
functions along contractual lines, public contracting has been elevated from
the specialist, apparently marginal, topic of public procurement3 to the key
feature of what now is properly described as the contracting State.4 The
result, it appears, has been the emergence in both the private and public
sectors of contracts which are hybrid in that they contain a mixture, in
differing proportions, of formerly distinct private and public organisational
characteristics.5 Such is the significance of the public aspects of what formerly
was regarded as private and the private aspects of what formerly was
regarded as public that the principal task facing the law of contract appears to
be to account for the disappearance of the division between private and
public or, to put it the other way, the merging of the private and public
spheres.6
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
In this chapter, I want to stress that, in identifying the hybrid, advanced

scholarship in the law of contract is, indeed, pointing to a significant
development in economic policy. It is my opinion that the merger of the
private and public along contractual lines is a most positive response to the
failures of such policy in the past. But, I do wish to stress that the new
institutions of contract have been produced as a response to the history of
such failures, and cannot be understood apart from that history. Most
accounts of hybridity deny this. Often of a post-modern character that revels
in a claimed break with the past, these accounts depict the hybrid not merely
as novel, which of course in a sense it is, but as sui generis. Attempts to explain
the emergence of the hybrid conceived in terms of this spurious radical
novelty are bound to be mistaken, and have led to some very poor economic
policy suggestions indeed. In order to stress the point that the significance of
the new institutions of contract lies in their relationship to previous forms of
economic policy, I will argue that the hybrid as such be dropped from
discussion of those institutions.
THE HYBRID FORM OF CONTRACT

Two things seem to be being said about the forms of contract in which the
merger of private and public is given institutional shape. The first is that they
are novel. If one takes economic organisation in the private sphere to be by
market exchange and economic organisation in the public sphere to be by
hierarchy, the new forms of contract are neither market nor hierarchy and as
such a new form of organisation. The new form of organisation has been
described in a number of ways, such as a clan7 or a network, but its core
feature is its novelty:
the familiar market-hierarchy continuum does not do justice to the notion of
network forms of organisation In network modes of resource allocation,
transactions occur neither through discrete exchanges nor by administrative
fiat.8
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
Ouchi, Markets, bureaucracies and clans.

Powell, Neither market nor hierarchy: network forms of organisation, p 306.
Thorelli, Networks: between markets and hierarchies.
46
The Hybrid Contract
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
THE CONTRADICTORY STRUCTURE

OF THE CONCEPT OF THE HYBRID
This description of the new form of contract as a hybrid is poor. The concept
of the hybrid is both contradictory and, as I will argue relatedly, turns on a
mistaken belief in its own novelty. It is contradictory in that it attempts to
establish the novelty of the new forms of contract, but can do so through the
concept of hybridity only by retaining intact the old forms of market and
hierarchy. The point has been made by Bradach and Eccles:
A thread weaving its way through the discussions of these complex
organisational forms is that they fall between markets and hierarchies defined
as ideal types. However, the presumption that a continuum runs from market
to hierarchy with relationships between technologically separable units
arraying themselves along it is misleading, as are the three-fold typologies
which simply add a category to the market and hierarchy dichotomy. These
approaches rest on the premise that market and hierarchy are mutually
exclusive means to govern transactions. There are major problems with this
premise elements of the ideal types (or the poles of the continuum) are often
found mixed together empirically: for instance, features of markets and
hierarchies are often combined.11
The hybrid is a combination of market and hierarchy. It emerges as a third

organisational form only if it can be distinguished from the other two, which
therefore must be maintained as such in order that the hybrid can be
distinguished from them. But, of course, by existing, the hybrid expresses an
effective critique of the original conceptions of both the private market and the
public hierarchy. It combines both forms, but in combining them, must change
them, for they were originally understood in opposition to each other. To
recognise this would, however, be to place the history of the opposition of the
private and the public at the heart of the supposedly novel hybrid contract,
which therefore would disappear as a sui generis form. It is as well to set out
the nature of this opposition in detail, for it has changed radically in the last 25
years, with a former emphasis on the superiority of public allocation over
private being reversed, and this change is the key to understanding recent
developments in contract.
10 Williamson, The Mechanisms of Governance, pp 104, 106.
11 Bradach and Eccles, Price, authority and trust: from ideal types to plural forms, p 99.
47
WELFARE ECONOMICS AND

THE PUBLIC CRITIQUE OF THE PRIVATE
The pure concept of the private market embodies, at its heart, as the
constitution of its private character, its distinction from public regulation
through hierarchical intervention. The first or basic claim of welfare
economics12 is that a market which conforms to the assumptions established
by neo-classical micro-economics for general competitive equilibrium13 is a
perfectly efficient mechanism for the allocation of goods.14 Under general
competition, goods will be exchanged up to the point where the increase in
one persons utilities achieved by further exchange would be more than offset
by the diminution in the sum of another persons. At this point of Pareto
optimality,15 the market is in equilibrium because there are no further
mutually beneficial exchange opportunities and, vitally importantly, it has
been brought there by the uncoordinated working out of voluntary exchanges
which automatically identify the point of Pareto optimality by reaching
equilibrium.
The beautiful symmetry of the model lies in its being driven by voluntary
exchange and working only because it is so driven. Any distinction between
the means and ends of the economy is redundant. Legitimate ends are secured
only when they are the product of legitimate means.16 This is the source of the
power of the rejection of patterned principles of distribution17 in favour of
the pure procedure of the market18 in liberal political philosophy, for any
State imposition of a fair distribution of goods must prevent the perfectly
efficient distribution which would be voluntarily reached at general
competitive equilibrium.19 In contract doctrine, this stress on pure procedure
is expressed in the refusal to inquire into the substantive adequacy of any
contract which meets the formal requirement of sufficiency of consideration.
12 Arrow, Pareto optimality with costly transfers, p 290.

13 Arrow and Debreu, Existence of an equilibrium for a competitive economy.
14 Gossen, The Laws of Human Relations, ch 7; Jevons, The Theory of Political Economy, ch 4;
Menger, Principles of Economics, ch 5, section 3; and Walras, Elements of Pure Economics,
lesson 12.
15 Pareto, Manual of Political Economy, ch 6, section 33.
16 Nutter, Moralism, morality and trade, p 261.
17 Nozick, Anarchy, State and Utopia, pp 15560.
18 Rawls, A Theory of Justice, pp 8390.
19 Hayek, Law, Legislation and Liberty, ch 9. Simon Deakin has recently emphasised an
aspect of Hayeks later work of which I was aware, but the significance of which, it
seems, I did not fully appreciate. Deakin, Private law, economic rationality and the
state. Hayeks appreciation in this work of the role of public law in constituting the
market would appear somewhat to undermine the criticism I will make of the position I
am attributing to Hayek in this paper. I will state the criticism as a criticism of the
position, which indubitably has been important, and leave the question of the accuracy
of attributing that position to the later Hayek.
48
The Hybrid Contract
In sum, the acceptance of revealed preferences as perfectly legitimate

expressions of the wills of the parties to the market (and, therefore, the ability
to alienate private property on the terms one chooses) is essential to the
fundamental efficiency claim for the market. The market as conceived in neoclassical economics is based as a means of allocation20 on privacy:
It would seem that wherever a Great Society has arisen, it has been made
possible by a system of rules of just conduct which included what David
Hume called the three fundamental laws of nature, that of stability of
possession, of its transference by consent, and of the performance of promises,
or the essential content of all contemporary systems of private law.21
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
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
Welfare economics has tended to identify State governance as intervention or

interference in the economy in circumstances of market failure, that failure
occurring when an assessment of the welfare function reached by a hierarchy
diverges from, and is taken to be superior to, the private one produced by the
market. It is not, in the first example Pigou gives in The Economics of Welfare, of
a steam train emitting sparks that cause damage to property near the track,28
that the market does not assess that damage. It is that, unless the railway
company owes a duty to the nearby landowners not to damage their property,
the market assesses that damage as zero, which, from the private perspective
under these conditions, it is. However, upon public acknowledgement that the
damage has a cost, following, say, the landowners successful application to a
commission of inquiry, that cost is identified as pertinent to the social welfare
function though it is external to the private. The natural conclusion is State
intervention, such as my examples29 the redistributive imposition of a tax
on the railway company out of which the nearby landowners can be
compensated, or the provision of a public good such as State funded research
into railway engines which do not emit sparks which the railway company
(for sensible reasons given private accounting horizons) is reluctant to
undertake. It was this general cast of mind that characterised the broad, postwar consensus on economic policy. With the authority earned by his
distinguished academic career and public service as a formulator and
implementer of Keynesian economic policy, JE Meade described this
consensus as the position of the intelligent radical:
the intelligent radical recognises the need for controls and interventions
in order to cope with important cases in which the market mechanism will
otherwise neglect to take into account important items of social, as opposed to
private, costs and benefits. Problems of environmental control will on these
grounds be recognised as raising issues which call for governmental action.30
The concept of contract has been radically altered in the light of this
recognition of market failures and acceptance of public goods. The main
27 Pigou, The Economics of Welfare, pp 127, 143, 172.

28 Ibid, Pigou, p 134.
29 Though based on Coases speculations about the similar problem of smoke nuisance.
Coase, The problem of social cost, pp 15153.
30 Meade, The Intelligent Radicals Guide to Economic Policy, pp 1516.
50
The Hybrid Contract
alteration has been a massive growth in statutory intervention in contract and

a concomitant shrinkage of the scope of private contract, to the point where it
is only at the cost of the most violent abstraction that the advanced capitalist
economies can continue to be described as market economies. Topics such as
consumer contracts and sales of goods which, one might fairly have
thought, belong at the core of the subject typically are treated as statutory
exceptions to the general common law.31 Obviously, if these exceptions were
brought into the core of the subject, as they should be in order to give an
account of it as positive law, contract would be changed completely.
However, as even this relegation of such vital issues to the status of
exceptions cannot ultimately alter the fact that exchanges actually governed
by negotiations between parties unregulated by the State which easily fit
within the will theory are a tiny residual category, if, indeed, they exist at all,
it is clear that it is contract that is the exception now.32 Even more tellingly,
the common law itself is now shot through with welfarist reasoning33 which
can be reconciled with the will theory only by the most unscrupulous and
tortuous perversions of the classical doctrines of contract.34 The death of
contract35 is now generally acknowledged in advanced contract scholarship,
though, of course, as we still lack a clear general alternative to the will
theory,36 the pathetic contrast between the law of contract as it is taught in
most textbooks and modern contract as it functions in society continues to
obtain almost as much now as it did when Friedmann first identified it in
1959.37 Further development of our understanding of the concept of contract
requires the removal of this contrast, but this is a task which must, after 20
years of vigorous neo-liberalism, now be undertaken not in the spirit of
further diminution of the private, but in the spirit of its restoration.38 Before
we enquire what restoration now can mean, let us look at the resurgence in
the fortunes of the private that make any sort of restoration plausible and,
indeed, necessary.
31
32
33
34
35
36
37
38
Collins, The Law of Contract, ch 12.

I am grateful to John Gava for this striking way of putting this point.
Atiyah, The Rise and Fall of Freedom of Contract.
Campbell, The undeath of contract: a study in the degeneration of a research
programme.
Gilmore, The Death of Contract.
Campbell, Socio-legal analysis of the law of contract.
Friedmann, Law in a Changing Society, p 90. The basic argument, if not this actual phrase,
was present in Friedmanns treatment of contract in Law and Social Change in
Contemporary Britain, ch 4, published in 1951.
Atiyah, An Introduction to the Law of Contract, pp 2734. In the UK, Atiyah has been to
the forefront of stressing the changed circumstances in which the critique of the classical
law of contract must now be conducted. His way of doing this, however, seems to be a
simple return to the classical values he previously had so effectively criticised. He even
seems now to accept many of those values. Atiyah, Freedom of contract and the New
Right. This seems to me to be literally reactionary and, as such, quite contradictory, for
nothing has been learned from the success of the earlier criticisms. Campbell, The
undeath of contract: a study in the degeneration of a research programme, pp 4147.
51
NEO-LIBERALISM AND THE

PRIVATE CRITIQUE OF THE PUBLIC
I have above used a statement of Meades intelligent radical to express the
broad attitude to State intervention as a remedy to public perceptions of
private market failure. Meade wrote The Intelligent Radicals Guide in 1975. Of
course, since then the intelligent radical has been neo-liberal.39
The poor performance of the centralised command economies of the
formerly communist countries40 and the unsustainability of the golden age
of Keynesian aggregate demand management in the social democratic
countries41 has meant that the last quarter of this century has been dominated
by conservative capitalism.42 Central to this capitalism has been a successful
attack on the extent of State intervention in the economy and a consequent
attempt both to reduce that extent and to refashion the residual public sector.
However, one must be careful what one means when one says this. Judging at
a time when the energy of the introduction of conservative capitalism now
appears to be spent, the extent to which monetarist economic policy has been
able significantly to reduce the macro-economic role of the public sector (and
hence produce the supply side revolution), and public choice theory to
reconstruct what remain non-economic State activities along market
mimicking lines, seems limited. Whatever ones opinion of these aspects of
conservative capitalism, however, the general legitimacy of the States direct
provision of economic goods has been destroyed and the recognition of a
public economic good now is accepted (in intellectual circles at least) as
almost a last resort of economic policy. Goods provided in this way are to be
provided along market mimicking lines when possible. It is in these two
senses, of shrinking direct provision through privatisation 43 and
marketisation of residual public good provision, 44 that the State is
contracting.
For whatever my opinion is worth, this is highly positive and must be
regarded as the lasting contribution of conservative capitalism to the
formulation of economic policy. The basic stated economic policy of the
39 I will argue that Coases criticism of welfare economic proposals for State intervention
have been a part of neo-liberalism of lasting value. The principal target of this criticism
has been some of Pigous quite erroneous identifications of market failures. But, as
editor of Journal of Law and Economics, Coase published two articles which made the
same point in relation to an example that Meade, it appears, wholly inaccurately gave of
market failure: that of bees pollinating orchards. Coase, The firm, the market and the
law, p 29.
40 Kornai, The Socialist System.
41 Armstrong et al, Capitalism Since 1945.
42 Hoover and Plant, Conservative Capitalism in Britain and the United States.
43 Moore, The success of privatisation.
44 Osborne and Gaebler, Reinventing Government.
52
The Hybrid Contract
communist countries was to reduce the number of capitalist survivals in

their economies ultimately to the zero which would mark the achievement of
full communism.45 This often was expressed in messianic terms which
appear ridiculous now, but which it should never be forgotten inspired an
utterly despicable totalitarian belief. Far from respecting revealed
preferences,46 economic policy during the dictatorship of the proletariat was
ultimately directed towards the construction of a new socialist psychology.47
There is a pale but clearly discernible imitation of this policy in the pursuit of
State ownership as a general good in itself which had a certain place in the
improving economic policies of the social democratic countries.48 The
principal achievement of conservative capitalism has been to establish that the
main problem with such a policy is not that it is unrealisable (as its
proponents always feared) but that it would be dreadful to realise it,49 and in
so doing has restored the fundamental plausibility of liberalism.50 I take it (as
I personally always have) that any socialism other than one which sought to
preserve and even enlarge the atmosphere of liberalism51 is now untenable.
The intellectual success of neo-liberalism in the area where I wish to stress
it is successful has been a withering attack on the Pigouvian case for public
goods. In RH Coases The problem of social cost, Pigous railway sparks
example is shown to be very badly argued indeed. There is a theoretical part
to this argument which I regard it as unproductive to discuss other than with
specialists. 52 Coase also makes the following historical argument. He
plausibly assumes that Pigou can be taken to have had in mind the situation
45 Althusser, Contradiction and overdetermination, p 114.

46 Eg, Bukharin and Preobrazhensky, The ABC of Communism, p 32. Of course, The critique
of the subjectivism of neo-classical economics which is allied to this moral or moralistic
position and indeed the moralism itself is not without merit. Cf, Bukharin, The
Economic Theory of the Leisure Class.
47 Trotsky, Results and prospects, pp 22931.
48 Cole, The British Co-operative Movement, pp 7374. Again, there is very considerable
merit in the critique of consumerism which lies behind this position. Cf, Galbraith, The
Affluent Society, ch 11
49 Berger, The Capitalist Revolution. An extreme aspect of the unpleasantness of social
democratic improvement, one which it is in a sense unfair now to mention, but which
nevertheless certainly existed, is the room Fabianism had for eugenic social engineering,
not only in a number of Shaws plays such as Man and Superman, but in concrete social
policy proposals.
50 Brittan, A Restatement of Economic Liberalism.
51 Orwell, Inside the whale, p 48.
52 This theoretical part is the vexed and baneful Coase theorem, which I have argued is
so unproductive that it should be ignored. Campbell, On what is valuable in law and
economics, pp 498505; and Campbell and Picciotto, Exploring the interaction between
law and economics: the limits of formalism, p 60. I have tried to account for Coases
somewhat equivocatory public attitude to this theorem, of which I am of the very
confident opinion he himself privately disapproved, in Campbell, Ronald Coases
political views at the time of writing The nature of the firm, unpublished (copy
available from the author at Cardiff Law School, University of Wales College of Cardiff,
PO Box 427, Cardiff CF10 3XJ).
53
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
The Hybrid Contract
nuisance.)59 He wishes to merely draw it to our attention that the Pigouvian

argument is not made out. A market driven solution may have been inferior
to the one produced by the State. But, Pigou is not even aware of the
possibility of a market in relationship to the sparks example, and this flatly is a
mistake.60
No doubt the main reason why Pigou did not give the market solution any
real thought is that he took it that intervention was such a solution, but he
gives no argument that this would be the case. He advocates intervention
without any inquiry whether it would work. The sparks problem is, in
fairness, briefly treated by Pigou. But though not related to the sparks
problem, one example he gives of a good regulatory body in all editions of
Economics of Welfare (itself taken from Wealth and Welfare) is the Interstate
Railway Commission of the United States.61 Of this example, Coase says:
In all editions, the Interstate Commerce Commission is referred to as the
Interstate Railway Commission, and this body, created in 1887, is always
described as recently developed, which does not suggest any real interest in
the subject.
And further: Pigou never seems to have thought it necessary to enquire

whether his optimistic opinion about [this commission] was justified by
events because he was of a cast of mind that assumed the existence of
(almost) perfectly functioning public bodies.62 It is this aspect of the (lack of)
thinking about the proper limits of the public sphere that has led to grandiose
and wasteful schemes of State intervention that we now must reject.
The point it now is essential to take from Coase is that our earlier
perceptions of market failure must be complemented by perceptions of
government failure when making choices between alternative governance
structures for the allocation of economic goods. 63 Furthermore, whilst
reasonable improvement is, of course, analytically a goal of legitimate
economic policy, we must be somewhat circumspect in our ambitions, for the
inevitable existence of market and government failure makes it clear that:
Until we realise that we are choosing between social arrangements which are
all more or less failures, we will not make much headway.64
59 Coase, The problem of social cost, pp 11518.

60 Coases even more telling criticism of this is of the use of the lighthouse in a great many
economics textbooks, including The Economics of Welfare, pp 18384, as an axiomatic
example of a public good. Coase not only shows that the theoretical argument is weak,
but the Coase touch that the actual example which the textbook authors must have
had in mind, the 19th century British lighthouse system, was largely private until
bought out by the State for (in current values) tens of millions of pounds. Coase, The
lighthouse in economics, p 201.
61 Pigou, The Economics of Welfare, p 334.
62 Coase, The problem of social cost, p 22.
63 Coase, Discussion of RE Caves, Direct Regulation and Market Performance in the American
Economy and RC Cramton, The Effectiveness of Economic Regulation: A Legal View, p 195.
64 Ibid, p 195.
55
THE SPURIOUS NOVELTY OF THE HYBRID

It is the commitment to both the market based on private ownership as the
natural state of the economy and the role of the State as intervention in
instances of market failure that has produced the separation of private
contract and public hierarchy which it appears the hybrid calls into question.
The two original conceptions are, I hope it is now clear, quite antithetical as
allocative structures. The former is based on a belief in complete privacy and
the other is based on the public rejection of the formers results in particular
(though now, of course, with the State expending around 40% of the gross
domestic product of each of the major industrialised countries, very many
indeed) cases. Their purported combination in a hybrid is, as I have said, a
contradiction. To be combined, they both must be changed, and indeed this is
exactly what has happened. Let me look at this combination again in more
detail.
It is conceiving of the hybrid as a combination of two old allocative
structures that gives it its novelty. The hybrid is a third form which arises, sui
generis, from that combination:
Two major outcomes of the search for new competitive approaches are already
apparent. First, the search is producing a new organisational form a unique
combination of strategy, structure, and management processes that we refer to
as the dynamic network Second, as is always the case, the new organisational
form is forcing the development of new concepts and language to explain its
features and functions.65
The implication of this conception of novelty is that the hybrid must be

explained in terms of its own internal logic, the logic that allows it to be
distinguished from the market and hierarchy which it combines. Though this
implication is followed through in the range of works on hybrids, it emerges
particularly clearly from such works which are committed to systems theory
after Luhmann.66 The identification of the claimed novel logic of the hybrid
fits particularly well in with the cataloguing of self-referential social systems,
each identified by a specific system principle, which seems to be central to
works of system theory:
It seems that hybrids are fundamentally distinguished from market contract
and from hierarchical organisation by different co-ordination and control
mechanisms. Is it their incentive structure risk structure or is it
something else that makes them so different that they cannot be adequately
explained within the logic of exchange or corporate hierarchy? What makes
them institutions that are neither market nor hierarchy?67
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
The Hybrid Contract
The problem this conception of novelty leaves is, of course, one of

explaining the genesis of the novel structure. Unless the explanation is very
unusual in the neo-evolutionary article from which the previous quotation
is taken it is based on far fetched biological analogies to mutation and
parasitism it is expressed in terms of the shortcomings of markets and
hierarchies which have produced the hybrid. In the case of the franchise
agreement:
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, they hybrid sacrifices co-operativeness
in favour of greater incentive intensity. The distribution of branded products
from retail outlets by market, hierarchy and hybrid, where franchising is an
example of this last, illustrates the argument. Forward integration out of
manufacturing into distribution would be implied by hierarchy. That would
sacrifice incentive intensity, but would (better) assure that the parts do not
operate at cross-purposes with one another. The market solution would be to
sell the good or service outright. Incentive intensity is thereby harnessed, but
suboptimisation (free riding on promotional efforts, dissipation of the brand
name, etc) may result. Franchising awards greater autonomy than hierarchy
but places franchisees under added rules and surveillance as compared with
markets. Costs control and local adaptations are stronger under franchising
than hierarchy, and suboptimisation is reduced under franchising as compared
with the market.68
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.
68 Williamson, The Mechanisms of Governance, p 107.

69 MacIntyre, After Virtue, ch 6.
70 Hegel, Philosophy of Right, Pt 2, sub-section 3.
57
DISTINGUISHING REGULATION FROM INTERVENTION

In the light of the what we have seen of Coases discussion of Pigou in The
problem of social cost, the way in which he begins that discussion is unusual.
He registers an agreement. Coase is careful to distinguish his criticisms of
Pigous arguments for intervention, of which we have seen he is profoundly
critical, from an argument of Pigous with which he agrees. The argument for
intervention in Part 2 of Economics of Welfare is prefaced with a four page
introduction in which Pigou quotes the distinguished economist Edwin
Cannan to the following effect:
the working of self-interest is generally beneficent, not because of some
natural coincidence between the self-interest of each and the good of all, but
because human institutions are arranged so as to compel self-interest to work
in directions in which it will be beneficent.71
This argument, Coase, says, seems to me to be essentially correct.72

This is a most significant argument with which to agree, for it is, of course,
a rejection of the invisible hand.73 It is as well to quote the most substantial
description Adam Smith gives of the invisible hand:
every individual necessarily labours to render the annual revenue as great
as he can. He generally, indeed, neither intends to promote the public interest,
nor knows how much he is promoting it he intends only his own gain and
he is led by an invisible hand to promote an end which was no part of his
intention.74
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.
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
The Hybrid Contract
every system which endeavours, either, by extraordinary encouragements,

to draw towards a particular species of industry a greater share of the capital
of the society than what would naturally go to it; or, by extraordinary
restraints, to force from a particular species of industry some share of the
capital which would otherwise be employed in it; is in reality subversive of the
great purpose which it means to promote. It retards, instead of increasing, the
progress of the society towards real wealth and greatness; and diminishes,
instead of increasing, the real value of the annual produce of its land and
labour.76
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
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
If one now is very sceptical of intervention, it is essential to see that there is

another part of Pigous argument against the invisible hand that is much
stronger. Its strength is hidden because Pigou thought it part of the argument
for intervention. It is not. Having quoted the passage from Smith we have
seen, Pigou goes on:
It would, of course, be unreasonable to interpret this passage in any abstract or
universal sense. Adam Smith had in mind the actual world as he knew it, with
an organised system of civilised government and contract law.80
Pigou certainly is here drawing attention to a major equivocation at the heart

of neo-classical economics. The invisible hand typically is represented as a
system of natural liberty, with economic action conforming to the
assumptions of rational individual utility maximisation being traced to an
essential, ahistorical human nature. One is often rather amused to see human
beings as such when described by neo-classical economists look very much
like the stereotype of the average citizens of the society in which those
economists wrote,81 and this is particularly so in one respect.
The exclusive concern with private self-interest that is analytically
developed as rational individual utility maximisation has, as we have seen,
very strong legitimacy in so far as it grounds a Pareto optimal allocation of
resources through the market. As we also have seen, it has been the line of
those arguing for a public role in economic allocations to argue that the
private market does not always lead to optimal outcomes by pointing to
instances of market failure and to then call for intervention by the State. But,
in fact, this is an almost trivial argument quite beside the main point, which is
that whilst intervention may or may not be a sensible policy in specific cases,
regulation is the indispensable condition for the existence of any economic
governance structure, including not only or even principally State governance,
but any market, whether interventions are made in it or not.82
79 Coase, The theory of public utility pricing and its application, p 119.
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
The Hybrid Contract
Let us return to Pigous treatment of Smith. Quoting Vilfredo Pareto,

Pigou observes that: the efforts of man are utilised in two different ways: they
are directed to the production or transformation of economic goods, or else to
the appropriation of goods produced by others.83 In the light of this, Pigou
observes that:
Activities devoted to appropriation obviously do not promote production, and
production would be promoted if they were diverted into the channels of
industry. We must, therefore, understand [Smith] to assume laws designed,
and, in the main, competent, to prevent acts of mere appropriation, such as
those perpetrated by highwaymen and card-sharpers More generally, when
one man obtains goods from another man, he is conceived to obtain them by
the process, not of seizure, but of exchange in an open market, where the
bargainers on both sides are reasonably competent and reasonably cognisant
of the conditions. There is ground, however, for believing that even Adam
Smith had not realised fully the extent to which the System of Natural Liberty
needs to be qualified and guarded by special laws, before it will promote the
most productive employment of a countrys resources.84
For the markets conceived to be at the heart of neo-classical economics to exist

at all, economic action oriented to rational individual utility maximisation
must be, as Pigou puts it by quoting from another work of Cannans:
confined to certain directions by our general social institutions, especially
Family, Property and the territorial State.85 This is to say that, at root, the
private market is a publicly endorsed institution, and takes its shape from
public law. Let me try to be perfectly clear about what this means.
Recognising that the impulse to accumulate can lead to aggressively
exploitative rather than productive action,86 it is clear that, if the neo-classical
concept of economic action is to yield spontaneous economic order, the claim
that economic action is solely motivated by rational individual utility
maximisation should actually be understood to be a claim that it is such
maximisation constrained within the bounds of peacefulness:
Economic action demands stable conditions. The extensive and lengthy
process of production is the more successful the greater the periods of time to
which it is adapted. It demands continuity, and this continuity cannot be
disturbed without the most serious disadvantages. This means that economic
action requires peace, the exclusion of violence.87
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
This solution of the Hobbesian problem of order88 theoretically precedes the

argument for the order of the invisible hand, but whilst the concept of
spontaneous order very valuably stresses the individual freedom inherent in
competitive equilibrium, this stress appears to work against the appreciation
that such order can emerge only when the antecedent problem of order is
solved. This simply amounts to a denial that legitimate self-interest in the
private market must be complemented by a public commitment to the
municipal order underwriting the market, and, therefore, that economic
action has both a private and a public dimension in any country with a
basically legitimate economy and polity.89 This denial flatly runs counter not
merely to the consensus positions in all social science other than neo-classical
economics but to the common sense of the citizens of the social democracies,90
and accounts for the marginality of harshly economic attitudes towards
concrete policy formulation in those countries.91
Coases attitude to this is entirely contradictory.92 As I have repeatedly
argued this elsewhere,93 I will merely assert the contradiction and then turn
my attention to that side of it which I think it productive to examine. A great
many of Coases explicit statements of a philosophy of economics are of a
positivist cast which is so extreme one had not thought one would ever
encounter it again in respectable social science. This involves a crude
philosophic anthropology in which economic action and specifically the
inclination peacefully to exchange in regular and consistent proportions
88 Parsons, The Structure of Social Action, pp 8994.

89 MacCormick, Legal right and social democracy. MacCormicks argument is, of course,
a specific application of the argument for an internal aspect to legitimate legal
obligation derived from Hart. The minimum content of natural law which Hart
regards as indispensable in a legitimate legal system is, as he himself stresses (Hart, The
Concept of Law, p 303 (note to p 193)) based on Hobbes (and Humes) solution to the
problem of order. Hart, The Concept of Law, ch 9, section 2.
90 Campbell and Picciotto, Exploring the interaction between law and economics: the
limits of formalism, p 276.
91 Campbell, Review of OE Williamson, The Mechanisms of Governance.
92 Smith himself is, of course, the source of this contradiction. The Smith attacked by
Pigou does trace the nature of the commercial societies to certain purportedly universal
qualities of human nature. But, equally or, indeed, predominantly, Smiths account of
that human nature is one in which self-interest is balanced by sympathy and social selfconsciousness more generally, and incorporates a developed awareness of the then
leading accounts of social development, principally Turgots four stages theory. The so
called Adam Smith problem of a claimed difference between a stress on self-interest of
The Wealth of Nations and a stress on sympathy in The Theory of Moral Sentiments (Buckle,
A History of Civilisation in England, Vol 2, p 437) is far too crude a way of registering our
continuing difficulties in arriving at a philosophic anthropology which properly situates
the acquisitive impulse. Coase has given a sophisticated but, to my mind, still
tendentious account of Adam Smiths view of man.
93 Campbell, On what is valuable in law and economics, pp 50507; Campbell and
Harris, Flexibility in long-term contractual relationships: the role of co-operation,
pp 17780; and Campbell and Picciotto, Exploring the interaction between law and
economics: the limits of formalism, pp 25253.
62
The Hybrid Contract
denominated in money is not itself subject to explanation but is represented

as human nature as such. Given this philosophic anthropology, of course, the
invisible hand may very well turn private vice into public virtue, because the
vice actually contains the virtue at the outset.
But, this philosophic anthropology has no place in Coases substantive
work, which is characterised by its immense carefulness about the
institutional context of rational economic action. It has been Coases basic
insight to clarify why market failure occurs by drawing attention to the
existence of what have come to be known as transaction costs, the costs of
producing an allocative outcome:
In order to carry out a market transaction, it is necessary to discover who it is
that one wishes to deal with, to inform people that one wishes to deal and on
what terms, to conduct negotiations leading up to a bargain, to draw up a
contract, to undertake the inspection needed to make sure that the terms of the
contract are being observed, and so on.94
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
Coase, The problem of social cost, p 114.

Ibid, p 114.
Coase, The nature of the firm, p 34.
Ibid, p 38.
Campbell, The relational constitution of contract and the limits of economics:
Kenneth Arrow on the social background of markets.
63
This is the foundation of productive law and economics because, of course,

the principal such institution to which one turns to explain the form of
markets, firms and regulation is the law:
If we move from a regime of zero transaction costs to one of positive
transaction costs, what becomes immediately clear is the importance of the
legal system in the new world what are traded on the market are not, as is
often supposed by economists, physical entities, but the rights to perform
certain actions, and the rights which individuals possess are established by the
legal system the legal system will have a profound effect on the working of
the economic system and may in certain respects be said to control it.99
This insight should be applied to all structures for the governance of

transactions, including particular markets, even that modern talisman, the
securities market:
commodity exchanges and stock exchanges are normally organised by a
group of traders (the members of the exchange) which owns (or rents) the
physical facility within which transactions take place. All exchanges regulate in
great detail the activities of those who trade in these markets (the times at
which transactions can be made, what can be traded, the responsibilities of the
parties, the terms of settlement, etc), and they all provide machinery for the
settlement of disputes and impose sanctions against those who infringe the
rules of the exchange. It is not without significance that these exchanges, often
used by economists as examples of a perfect market and perfect competition,
are markets in which transactions are highly regulated (and this quite apart
from any government regulation that there may be). It suggests, I think
correctly, that for anything approaching perfect competition to exist, an
intricate system of rules and regulations would normally be needed.100
Coases criticism of blackboard economics does not merely or even principally

work against cases for intervention based on welfare economics, but against
the passing off of pure economic reasoning as sensible economic policy:
Contemplation of an optimal system may suggest ways of improving the
system, it may provide techniques of analysis that would otherwise have been
missed, and, in certain special cases, it may go far to providing a solution. But,
in general, its influence has been pernicious. It has directed economists
attention away from the main question, which is how alternative arrangements
will actually work in practice. It has led economists to derive conclusions for
economic policy from a study of an abstract model of a market situation.101
99 Coase, The institutional structure of production, p 11.

100 Coase, The firm, the market and the law, pp 910. Cf, Coase, The institutional
structure of production, p 12.
101 Coase, Discussion of RE Caves, Direct Regulation and Market Performance in the American
Economy and RC Cramton, The Effectiveness of Economic Regulation: A Legal View, p 195.
64
The Hybrid Contract
As much of the theory guiding conservative capitalist policy has been

precisely of this nature, its utopian goal of complete private marketisation is
just as indefensible as many of the worst projections of welfare economics,
and should be replaced with realistic institutional assumptions, and therefore
perhaps defensibly relevant policy recommendations. Coases criticism of
Pigous ideally functioning public institutions works just as well against
ideally functioning private ones:
the whole discussion is largely irrelevant for questions of economic policy
since, whatever we may have in mind as our ideal world, we have not yet
discovered how to get to it from where we are. A better approach would seem
to be to start our analysis with a situation approximating that which actually
exists, to examine the effects of a proposed policy change, and to attempt to
decide whether the new situation would be, in total, better or worse than the
original one. In this way, conclusions for policy would have some relevance to
the actual situation.102
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.

103 Hurwicz, The design of mechanisms for resource allocation.
104 I stress that this applies only to the allocation of economic goods, the sole concern of this
paper. It would appear that there are enormously significant spheres of social life which
should not be run on market lines because the orientation of appropriate action within
them should not be towards self-interest expressed as rational individual utility
maximisation. Walzer, Spheres of Justice. Of course, where the boundaries of the noneconomic spheres should be drawn is essentially contestable, and neo-liberalism has
usefully widened our imagination of what might usefully be regarded as economic.
Duxbury, Do markets degrade?. Nevertheless, perhaps the most objectionable aspect
of law and economics is the way it has, following Becker, very crudely thrust economic
reasoning into non-economic spheres, certainly creating more heat than light by so
doing. Campbell, On what is valuable in law and economics, pp 49296; and Campbell
and Picciotto, Exploring the interaction between law and economics: the limits of
formalism, pp 25356.
65
Furthermore, as the pursuit of general equilibrium is impossible, and

therefore very likely indeed to be a harmful goal,105 pursuit of realistic,
second-best goals106 is a matter of institutional choice which cannot be
avoided. When deciding that economic goods should be allocated through
markets, it is incumbent to pay a great deal of attention to the institutional
structure of those markets to see that, so far as reasonably possible, action
within them conforms to the assumptions of neo-classical economics which
will allow the resulting distributions to be defensible as the outcomes of a
voluntary market. One thinks immediately of ensuring that consumers are
reasonably knowledgeable, that supply is contestable, etc.107 This is a matter
of law and the cultural values guiding the interpretation and enforcement of
law, but it is, of course, a matter to which, typically, very little attention has
been paid at all in a law of contract which believes that contracts proper are
(almost entirely) private. The result of creating markets in ignorance of the
necessity of setting these institutional parameters will be, as Ian Macneil has
put it, a very poor joke at the expense of the consumer,108 as the asymmetries
of information and bargaining power that characterise the advanced capitalist
economies manifest themselves109 in obviously sub-optimal allocations.
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
The Hybrid Contract
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

111 Brownsword, The philosophy of welfarism and its emergence in the modern English
law of contract.
112 Fried, Contract as Promise and Trebilcock, The Limits of Freedom of Contract.
113 Campbell, The undeath of contract: a study in the degeneration of a research
programme.
114 Campbell, Socio-legal analysis of the law of contract.
115 Collins, The Law of Contract, 1986, chs 89.
116 Campbell, The relational constitution of the discrete contract.
117 Ibid.
118 Lewis, Choice and the Legal Order.
67
THE DISAPPEARANCE OF THE PRIVATE

AFTER THE MERGER OF PRIVATE AND PUBLIC
In this most important sense, then, spontaneous social order is not
spontaneous and the invisible hand is not invisible.119 Nozick rather concedes
this, I feel, by allowing that it is necessary to have a minimal or ultraminimal
State within which the market can allocate goods.120 For this concession,
Nozick has been excoriated by outright libertarians, who perceived that it cuts
against their fundamental anarchism.121 In this they are right. One may wish
to keep the State as small as possible, and in the light of the attitude to
intervention taken here, ceteris paribus one could have no disagreement with
this. But once one recognises the vital public role in constituting all social
institutions, including the regulatory basis even of markets in which one does
not then intervene, then, on pain of contradiction if one does otherwise, one
must accept the primacy of the public dimension of all social institutions. The
liberal conception of the nightwatchman State,122 the strong distinction
between negative and positive rights, 123 and private property 124 are
indefensible as statements of natural liberties.125 These are social institutions
the form of which is (even when this is denied) and should be (though often it
is not in any open way) publicly determined. The private, as a category in
itself, does not exist, for the private is a public construction, the limits of which
are then a matter for public debate. It is in this sense that we should
understand the disappearance of the private or the merger of the private and
the public.
In Gewirth, the creation of publicly recognised rights 126 within a
community of rights127 is placed on the single footing of argument from the
principle of generic consistency.128 In Habermas, the properties of properly
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
The Hybrid Contract
functioning democracy129 are derived from analysis of the conditions of ideal

speech.130 I do not put these examples forward to guide concrete policy
formulation, for, indeed, when one does identify such concrete proposals in
either author, one often finds them to be typical overstatements of the
beneficent powers of state intervention.131 But the point is that they have
placed the creation of social institutions on a common ground of public
debate, and democracy132 can be nothing other than the actualisation of such
debate.133 This brings us to the concrete issue of participation in economic
policy formulation, which can be dealt with in some concluding remarks on
the hybrid.
THE HYBRID AND PARTICIPATION

One of the principal achievements of the use of the hybrid in the literature
emerging from systems theory has been to show that regulation as
intervention may be of limited effectiveness and/or have unintended and
unwelcome side effects. In the former case, the intervention into a social area
of life fails to produce the hoped for results, and in the latter may have bad
side effects which outweigh any useful effects. When implicated in these
failures, the law itself is degraded. In the case of such intervention, Teubner
argues:
either law, politics and/or the social area of life will be mutually
indifferent, or juridification will have disintegrating effects on the politics
and/or social sectors concerned, or, finally, law itself will be exposed to the
disintegrating pressures to conform of politics and/or social sectors.134
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.
69
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 clear theme is to move away from bureaucratic imposition of outcomes

through intervention to the development of reflexive dialogue with actors in
an area which respects those actors autonomy:
What makes this roundabout way of looking at [the problems of regulation] an
attractive solution, by contrast with command and control regulation is that
it opens up access albeit indirect access to the central mechanisms of selfregulation. Politics gains access to the central control mechanisms of firms,
trade unions, and interest groups The role of law in such processes of
adjustment is rather limited It is limited to providing forms of organisation,
procedures and competences the development of this type of reflexive
legislative policy would be the new magic formula of modern law: Find a
form of law which leaves the autonomy of social discourses undisturbed, but
which simultaneously encourages them reciprocally to take heed of the basic
assumptions on which each is based.136
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
135 Teubner, Substantive and reflexive elements in modern law, p 274.

136 Teubner, Law as an Autopoetic System, pp 9697, the last sentence quoting Blanke,
Verrechtlichung von Wirtschaft, Arbeit und socialer Solidaritt, p 200.
137 Hutter and Teubner, The parasitic role of hybrids, p 122.
70
The Hybrid Contract
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
138 Eg, Ayres and Braithwaite, Responsive Regulation.

139 Except for purposes of total war, and, of course, its superiority as the economic
governance structure in support of war waged in this way is another argument against
it.
140 The socialist contract: fairness and efficiency in markets, Inaugural Lecture on
appointment to the Chair of Law, Sheffield Hallam University, October 1997 (available
from the author at Cardiff Law School, University of Wales College of Cardiff, PO Box
427, Cardiff CF10 3XJ).
71
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
The Hybrid Contract
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
A CONSTITUTIONAL CULTURE FOR MORE

PARTICIPATION: WHAT WOULD IT LOOK LIKE?1
Perri 6
THE EVERYDAY LIFE OF CONSTITUTIONS

One could be forgiven for thinking, the way the chatterati are talking, that
constitutions live in capital cities. The British constitution, it seems, is
probably going to be devolved from Westminster to Edinburgh, Cardiff and
somewhere else in London. All the talk is about the distribution of seats, the
comparative merits of different voting systems, and what titles the new lites
in these capital cities will take for themselves.
But, it is wholly misleading to talk about the constitutional geography as
though it were a metropolitan gallery of old masters. Worse than that, it is
actually dangerous. In fact, constitutions lead everyday humdrum lives in
back streets, lowly sub-offices and schools. When those lives change, the
constitutional culture of Britain can change in ways that do not get thought
through clearly when everyone is obsessed with the ceremonial places in SW1
and its equivalents in Wales and Scotland.
Perhaps it is easier to recognise this at first in the US than in the UK. There,
the constitution is a part of what children learn about in schools, not so much
when they do civics lessons, as when they acquire certain expectations about
how their lives can be lived; specifically about how they can complain; about
the confidence with which they can assert certain rights; about the things that
bind them together; and about what, if anything, politicians and government
officials can be trusted to do, and why. The litigiousness of Americans has
some of its foundations in a culture of recourse to law that the constitution
affords and sanctifies. The politics of every local pressure group meeting in
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
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
A Constitutional Culture for more Participation: What Would it Look Like?
attending to the barometer of constitutional gossip brings grave risks not

merely of unpopularity, but of deeper distrust of public life and ever more
conflict-oriented uses of the constitution by discontented litigants and social
movements. There is no point in changing the constitution unless one also
changes the constitutional geography of Britains cultures, and perhaps unless
it enables more participation and trust in the institutions of democratic
participation.
In this chapter, I explore what we know or hypothesise about the character
of Britains cultures of constitutionalism. The chapter is concerned with what
would sustain higher levels of participation, looked at through the lenses of a
number of bodies of theory about cultures in general and political cultures in
particular.
The first two thirds of the chapter are theoretical and analytical. The
chapter begins by sharpening up and clarifying the question to be explored:
what are the cultural conditions for enhanced participation? In particular, it
explores the meaning of the assumption that participation should be
sustainable, given that it is known that levels of participation describe
historical cycles, and that participation should be benign, although much
participation is stimulated not so much by constitutional opportunities as by
disappointment.
The chapter then uses one of the most powerful contemporary
anthropological theories of culture to consider some of the principal cultural
biases through which we each see political participation, and that we can
expect to find distributed across the population of any complex society. A
classification of some of the principal dimensions of different cultures of
constitutionalism will be advanced. This classification will focus on cultures of
trust in those individuals and organisations that have constitutional authority
to make decisions, because varying the level of such trust is an important
response to culturally filtered perceptions of the opportunities for and the
costs and benefits of participation. In particular, some hypotheses will be
formulated about presumptions about how trust will differ by cultural bias.
Some conclusions about the cultural conditions for enhanced sustainable and
benign participation will then be drawn, but it can be observed now that those
conditions will not be easy to satisfy.
In the final third of the chapter, after a brief description of changes in the
British culture of constitutionalism, some of the cultural questions, risks and
opportunities that the current proposals of the British Government for
constitutional change will be identified. The conclusion will consider some of
the implications of the argument for the future direction of democratic theory
and its relationship with social capital theory.
77
CULTURES, CONSTITUTIONS AND PARTICIPATION

When considering increasing the level of democratic participation in political
decision making it is important to identify what I have called a culture of
constitutionalism, because bringing about such an increase is not just
indeed, it is not even principally a question for the legal designers of formal
constitutional rules. It is also, and arguably crucially, a question about
culture.2 Constitutionalism is not just a tradition of a special kind of law
making, but something with a cultural life.3 The ways in which people will
make use of a set of constitutional rules are at the very least influenced by
their cultures. The idea of the lobby in Britain and of the demonstration in
France reflect fundamentally culturally different uses of constitutional
opportunities.
The cultures that enable and sustain participation are plural in number,
change relatively quickly, and are susceptible to influence but not always in
straightforward ways. A complex society is a mlange of sub-cultures that
differ by region, by age group, by political attitude, by rituals and dress, and
by levels of aspiration. 1990s Britain, for example, exhibits a wide variety of
small, fragmented youth sub-cultures of relatively limited political
expressivity.4 In comparison, in the Britain of the 1970s, punks, rude boys and
new wave hybrids coalesced into a brief, but broadly radical, political
culture.5 The contemporary political culture of 30 somethings, which are
influenced by the emergence of less class-centric cultures, differ sharply from
those observed during the polarisations of the 1980s.
The interaction of different cultures determines not only the uses people
make of the constitutional structure of opportunities for participation, but also
the legitimacy of those opportunities and the acceptability of the participation
practices of many interest groups. In the US, for example, cultural attitudes
towards class action litigation make legitimate certain forms of participation
by interest groups that some continental European countries, which have been
much less willing to grant power over policy making to judges and lawyers,
would have difficulty in entertaining. Cultures can either sustain or
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
undermine a constitutional order. On the other hand, changing the

constitutional rules can be met with adaptation and resistance by cultures. So,
too, does abstention from change. Thus, for example, the availability since the
1940s of legal aid steadily made enormous changes in the cultures of litigation
and expectation about the role of law in participation in Britain, while
constitutional innovations such as the early 20th century exemption of certain
categories of the property of the monarch from tax so grated against changing
cultures that they proved to be unsustainable by the 1990s.
Moreover, understanding the cultural conditions in which constitutional
rules are received is of great importance when evaluating a constitutional
order. Some constitutional innovations fail because they run up against deepseated cultural limits on what is acceptable. Thus, for example, by the 1650s
the Cromwellian Commonwealth ran up against a number of culturally
heavily ingrained expectations and commitments in England, as did the Vichy
regime led by Ptain in France in the 1940s.
Under the Labour administration elected in 1997, Britain is entering a
period of relatively drastic formal and explicit constitutional change (there
was plenty of less formal but nevertheless significant constitutional change
under the Conservatives between 1979 and 1997).6 There will be a devolved
Scottish parliament with tax varying and domestic law making powers, a
Welsh assembly, the incorporation of the European Convention on Human
Rights into British law, legislation to remove from hereditary peers in the
House of Lords their rights to vote on primary legislation, the creation in
London of a new strategic authority and a directly elected mayor, and the
substitution of no win, no fee financing options for the availability of legal
aid in certain types of case.6a The Government has argued that at least some of
these changes will enhance the opportunities for certain kinds of participation,
thereby cutting with the grain of Britains political culture. For example, some
of these changes have been designed to align institutions of political
representation with national or city feeling and identity, and others have been
justified as changing and perhaps expanding the opportunity for participation
by way of redress in administrative and human rights litigation.
At such a time, then, it is essential to explore the cultural conditions of the
viability of constitutional change in general, and to develop ways of gauging
the likelihood of current constitutional reform proposals to create, stimulate,
or enhance cultures of political participation in Britain. The next section more
carefully defines those valuable properties of participation for which we need
to identify the cultural conditions.
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.
79
CULTURES OF SUSTAINABLE PARTICIPATION

The question set by the editors of this book to the authors was whether
anything can be done, and if so what, to increase levels of democratic
participation, and this chapter will explore the cultural conditions under
which this might be possible. This question must be amended to emphasise
that any such increase must be both sustainable and benign.
For there are, in fact, undesirable ways to increase levels of participation,
at least in the short term. For example, if social conditions are allowed to
deteriorate sharply and people become frustrated, they may well participate
angrily. Indeed, popular dissatisfaction and frustration with the quality and
quantity of the services they receive is probably the most common reason for
rising levels of participation. As Hirschman pointed out,7 an increase in the
decibel levels of voice usually occurs in response to disappointment.
Furthermore, again to follow Hirschman,8 people are often prepared to
participate for short periods, but burn out having become disappointed with
the balance between the costs and benefits of participation, and tend to do this
as part of larger social cycles of activism and civic privatism. Activists become
disillusioned with their own goals, with the institutions of participation, and
with their own organisations. This process can be observed, for example, in
the decay of many of the leading dissident movements and early democratic
parties in Poland, the Czech Republic and Hungary after the fall of
communism. Similarly, after protracted periods of civic privatism, people
become disappointed with the achievements of private exit alone, and try to
find a more public voice again. It was this aspect of the rise of participation
leading up to the unrest of 1968 that Hirschman originally tried to explain,
after Olsons theory of collective action seemed to leave it inexplicable. Of
course, there are also wider influences on the depth, duration and distribution
of the peaks and troughs of Hirschman cycles of participation. These include
the condition of the economy, the labour market trends affecting the use of
time, family and household structure, and also the media strategies
influencing the issue attention cycle.
Now while those who want to raise levels of participation can hardly
advocate making matters worse in order to annoy people into exercising
voice, democrats take differing views of Hirschman cycles. Some argue that
they are a fact of social and cultural life, very difficult effectively to overcome,
that they are perhaps no bad thing, that the right not to participate is
important in a democracy, and indeed that it is offensive to liberty to want to
encourage everyone or even many people to become continuously active
participants in social decision making for longer than they would otherwise
7
8
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.
81
demanding one from a question about greater aggregate participation that

may be skewed in particular ways.
The first issue concerns what I will call the life course. In different
societies, participation tends to be most evident during different phases of life.
There are gerontocratic and there are youth dominated societies, in which the
culturally defined roles, opportunities, customs and costs of participation fall
differently between the generations. Soviet Russia was famously
gerontocratic. Britain offers much more evenly distributed opportunities
across the life course. In many African and middle Eastern countries
opportunities for political participation are relatively youth dominated,
reflecting the age profile of the population.
Secondly, participation is lumpy because it is organised around social
identities and, indeed, can play a key role in the reinforcement or reinvention
of those identities. Political participation in the civil rights, womens liberation
and gay liberation movements in post-war USA has not only reinforced
African-American, womens and feminist and gay social identities, but has
played a key role in their formation. Clearly, when participation becomes
highly polarised around social identity and the processes of negotiation and
tolerance become strained by the identification of many people with particular
oppressed identities, the result can be gridlock and, as the US expression has
it, culture wars. In such culture wars, sincere participation takes place almost
entirely within the enclave furnished by a particular identity and participation
outside that enclave is entirely instrumental. The US presents, however, a
special and extreme case of the common phenomenon that participation as a
collective process is one that builds upon and itself builds identity.
Thirdly, in the writings of most activist democrats, it is implicitly or
explicitly asserted that the need for greater participation is most urgent among
people in the lower socio-economic classes. This places rather different
cultural demands than does, say, increasing the participation of the articulate,
educated, middle aged, middle income groups in socio-economic classes A
and B.
Finally, it is necessary to specify the cultural conditions under which a
high level of sustainable participation might be achieved. If high levels of
participation lead to gridlock in decision making they are not likely to be
sustainable for long periods of time. The next section gives a general account
of political culture which will enable us to identify the conditions for
sustainability.
CULTURAL BIASES ABOUT PARTICIPATION

Because there are many cultures within a nation to which a pluralist liberal
constitution must give space, it is well to examine what we know about the
82
diversity and interaction of political cultures in order to assess the use of

constitutional opportunities to participate.
One of the most powerful theories of the range and diversity of cultures
has been developed by Mary Douglas (the distinguished British
anthropologist), the late Aaron Wildavsky (an American political scientist and
policy analyst), and their collaborators.12 Known sometimes simply as
cultural theory13 and sometimes as grid-group theory, it begins from the
argument that there are two fundamental dimensions of social life, the grid
and the group, which can be depicted as the axes of a graph on which
specific societies can be located. The social structural institutions of rules, roles
and the classification of people and norms are the grid. The extent to which
the basic unit of social life is the group or the individual, or, more accurately,
the degree to which the individual is incorporated in the group, is the group.
These two dimensions are fundamental because no human society can sustain
itself without devising a workable settlement between the conflicting
impulses that each axis represents. In the absence of some such settlement of
this kind, it becomes impossible to develop coherent social systems, for
example, a law of contract on which basic economic life can be based.
Breaking up the space created by a cross-tabulation of these two
dimensions into high and low grid and group yields a four-quadrant schema
which has proven extremely useful in many empirical contexts in
understanding how cultures differ.14 It is set out in Figure 1.
Grid-group analysis offers more than simply a typology of the cultural
biases exhibited by individuals in particular institutional settings.15 It also
offers a body of explanation and prediction. I want here to draw out six key
empirically testable hypotheses that emerge from grid-group cultural theory
of direct relevance to the question of increasing participation.
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.
83
Figure 1: Types of culture

grid
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.
egalitarianism, enclave, sect

systems are oppressive
Egalitarian social systems must be
protected; other social systems are
oppressive and should be regulated
and designed to prevent worst risks
and distribute costs of protection
fairly across society; solidarity within
communities and by the rich to the
poor is important; high levels of
participation are believed to be
sustainable and socially benign.
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
interested in the structuring of social relations for the wielding of institutional

power, whether for the maintenance of property rights or a wider conception
of a pattern and stable social and economic order. The tie between fatalism
and egalitarianism is referred to as the negative diagonal because alliances of
that kind are usually of a defensive, reactive character concerned with
resistance rather than a programme for the use of authority.16
Fourthly, the theory predicts that cultural changes, both in individuals and
among groups, will more often take the form of diagonal rather than vertical
or horizontal shifts.
Fifthly, the theory offers an enrichment of the Hirschman cycle as it
predicts that egalitarians will usually burn out sooner or later because the
energy levels involved in such a way of life are very high, and then a shift to
one of the other cultures is required. The theory does not, however, predict
that any particular culture will be the recipient of a majority of disillusioned
egalitarians.17
Sixthly, the theory predicts that no complex society can reproduce itself
unless it contains each of the four types.18 While some societies may have
relatively fewer, say, fatalists, or relatively fewer individualists than another,
the cultural dynamics of any complex society are such that all four will
emerge in some shifting, unstable but long-run mutually sustaining
relationship over time or else the whole society will fail to sustain itself. For an
example of a society dominated by hierarchists using an egalitarian ideology
in which they had ceased to believe, governing a society disproportionately
fatalistic, and which proved unsustainable, we need only look to the Soviet
Union. Colin Turnbull provides a graphic example of a society in which the
hierarchy failed completely.
An important use of this theory is to explore the different culturally
specified perceptions, expectations and valuations of participation in decision
making that will be found in each of the four different cultures. The
hypothesis offered here is that different perceptions, expectations and
valuations of participation will be empirically distinguishable in each
quadrant, and that the cultural bias specific to that quadrant will be sufficient
to explain a significant proportion of that variance.
Egalitarians, committed to extensive participation within the group they
themselves are committed to, tend to imagine that high levels of participation
are sustainable. The way in which they participate tends to involve distrust of
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.
85
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.
19 Almond and Verba, The Civic Culture.

86
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.
87
behaviour.21 Each cultural bias in the grid-group scheme then encompasses a

number of elements. For the present purpose, it is not necessary to try to
develop a comprehensive classification of the elements of cultures, though
there have been many attempts to produce such taxonomies.22 I want to focus
on certain key dimensions of cultures of constitutionalism and explore their
significance for participation. These are the affective, the risk perception, the
behavioural, the financial and the educational dimensions of culture. Within
the affective dimension, I mean to include pride, esteem, trust, loyalty and
identification. The risk perception dimension is concerned with the
recognition of the risks and opportunities that the constitution affords the
constitution and individuals. By the behavioural dimension I mean to refer to
the willingness to use opportunities for the exercise of voice by way of
complaint or litigation, especially judicial review, and to views of the
propriety of restraint and responsibility in the exercise of voice. The financial
dimension includes the willingness to pay for and sustain the costs of the
prevailing constitutional order, including, for example, the budgets for such
expenditures as legal aid, court staff and administration, referenda and
innovative forms of consultation. This level is particularly readily linked with
that of risk perception, because a commonly perceived risk is that the costs of
increasing participation could spiral out of control. Above some threshold
expressed as a proportion of the costs of other public services, the costs of
constitutional opportunities for participation may become culturally
unsustainable. By the educational dimension I mean to refer to the depth and
distribution of awareness of constitutional opportunities for participation.
Using this framework, I will set out some hypotheses about what is
happening to cultures of constitutionalism and participation in Britain.
The affective dimension

Reported national pride in Britain generally runs around or just above the 50%
mark, which is significantly above the European average.23 However, as
reported in surveys by MORI,24 the Henley Centre for Forecasting and
others,25 esteem for, trust in and loyalty to the major institutions of the British
21 For a review of the main definitions used in the anthropological and sociological
literature, see Geertz, The impact of the concept of culture on the concept of man. For a
recent sociological review, see Berger, An Essay on Culture: Symbolic Structure and Social
Structure.
22 For one recent intriguing attempt to distinguish locations and dimensions for the
purpose of describing the political cultures of social movements, see Lofland, Charting
degrees of movement culture: the task of the cultural cartographer. Although it would
certainly be useful in understanding cultures of constitutionalism, I have chosen not to
try to apply Loflands schema here because it ranges too widely for the present purpose.
23 Kaase and Newton, Beliefs in Government, p 116, Table 5.3 for 1985.
24 MORI, British Public Opinion.
25 Atkinson, Suspicious minds: public distrust of government, pp 1214.
88
constitutional order, particularly politicians, the established church, the

monarchy and the civil service, has been declining for more than a decade. In
general, esteem for or trust in hierarchical institutions has declined
significantly,26 but levels of alienation from the constitutional order are
particularly high among young people.27
Identification with administratively defined locality, 28 with British
nationality, and with the constitutional order in general is not falling at such a
rapid rate, although Scottish, Welsh and some northern English regional
identities are significantly stronger than territorially defined identification in
much of southern England.
Identification with pressure group organisations, at least as measured by
membership data reported in Social Trends, continues to rise and fall in Britain
in cycles that look roughly like those posited by Hirschman. A large rise in
membership of and support for environmental movements in the 1980s
peaked by the end of that decade and have described a plateau in the 1990s.
Since 1991, while individual green consumerist attitudes and behaviour have
changed little,29 more collective voices on green issues has been quieter.
Reported willingness to engage and actual engagement in various forms of
political participation other than voting remains relatively high by
international standards and has risen since the late 1970s.30 Indeed, a general
rise in participation has been observed in most OECD countries over the postwar period,31 but it has not been evenly distributed across society, and, again,
both voting and other kinds of participation by young people may be running
at low levels in Britain.32
The dimension of risk perception

It is much more difficult to discern from survey data clear trends in the
perception of risks connected with the constitutional order than it is to see
patterns in affective constitutional culture. Few surveys of any scale give data
the perception of the risk of gridlock, of over-representation of activist
26 Inglehart, Modernisation and Postmodernisation: Cultural, Economic and Political Change in

43 Countries, pp 299302.
27 Wilkinson and Mulgan, Freedoms Children: Work, Relationships and Politics for 1834 Year
Olds in Britain Today, pp 98108.
28 Gosschalk and Hatter, No sense of place? Changing patterns of local identity.
29 Henley Centre for Forecasting, Planning for Social Change.
30 Eg, the data from various surveys collected in Kaase and Newton, Beliefs in Government,
p 51, Table 3.4.
31 Ibid, Inglehart, ch 6; and Kaase and Kohut, Estranged Friends? The Transatlantic
Consequences of Societal Change, pp 3539.
32 Ibid, Wilkinson and Mulgan, pp 98108.
89
minorities with intense preferences, of political exclusion, of civic privatism,

or of a lack of honesty in consultation and involvement practices. Data are
available on levels of reported interest in politics, satisfaction with the
democratic systems as a whole, fairness of the interaction between taxes and
incomes, etc, but these are very imperfect indicators, from which inferences
about real perceptions and how they cluster would be risky. Some of the data
from the MORI Socioconsult Programme carried out in the early to mid 1990s
could be interpreted as suggesting that disproportionate numbers of young
people exhibit fatalist perceptions of the risk of political participation. 33
Individualist and hierarchist risk perceptions about gridlock are probably
highly correlated with strong preferences for the general contraction of taxes
and public spending and unwillingness to pay for additional welfare
expenditures. The number of those willing to sustain both of these kinds of
public expenditure through taxes may have fallen back in numbers since the
late 1970s.34
The behavioural dimension

The number of applications for judicial review has risen steadily in Britain
through the 1980s and 1990s,35 as have appeals to Social Security Appeal
Tribunals, complaints against doctors, medical negligence suits, and
expenditure on the civil legal aid budget. This might suggest a general rising
willingness to be querulous about public services. It also may at least partly be
a result of the greater accessibility of Legal Aid and the introduction of new
tribunals and complaints systems, and greater trust and confidence in the
quality, responsiveness and efficacy of the means of the redress that are
available. Attitudes to restraint and responsibility in participation have not
been measured directly.
The financial dimension

Survey data on willingness to pay taxes is usually collected through questions
that ask about either aggregate tax levels or willingness to pay for certain
types of welfare expenditure, rather than about expenditure on the
constitutional process. However, there may be a general levelling off in the
1990s, after growth in the 1980s, in self-reported willingness to pay taxes at the
aggregate level, at least as found by the British Social Attitudes surveys.36
33 Wilkinson and Mulgan, Freedoms Children: Work, Relationships and Politics for 1834 Year
Olds in Britain Today.
34 Kaase and Newton, Beliefs in Government, ch 4, which principally uses data from the
International Social Attitudes Survey.
35 Marshall, Lions around the throne: the expansion of judicial review in Britain.
36 Jowell et al, British Social Attitudes.
90
The educational dimension

While most people in Britain have been found to be aware of the main
opportunities for participation, awareness of forms of redress runs
consistently below levels of awareness about opportunities in connections
with voting, demonstration, petition and other conventional protest
measures.37
TRUST AND THE CONSTITUTIONAL ORDER

It is worth examining a little more closely a key aspect of affective
constitutional culture trust. For trust in the leading institutions granted
powers by the constitutional order is an important measure of legitimacy, and
of the process by which different social identities negotiate with one another
in systems of participation. It seems reasonable to suppose that those who
trust the relevant institutions to operate with efficacy and procedural fairness
when handling the input from wider participation will be more likely
themselves to participate than those who do not.
I have argued elsewhere that it is useful to distinguish reasons and tasks
in the analysis of trust. The reason for trusting a person or organisation are
reasons, and the types of tasks (including refraining from or preventing some
conduct) that person or institution is entrusted with are tasks.38 Trust is an
agency relationship in which for given reasons we trust people or
organisations to carry out particular tasks. Therefore, trust is quite distinct
from esteem, in which tasks may not be directly set, and from respect, in
which precise reasons for trust may be absent. It is an empirical question
whether someone will only trust the people or organisations that she holds in
high esteem or respects, and vice versa, and if trust and esteem are highly
correlated in this way, and whether esteem comes first, or trust comes first.
We can classify reasons in the following way. First, we might trust on the
basis of past experience of dealing with the person or organisations in which
we have seen them prove reliable. Secondly, we might trust on the basis that
the person or organisation has a reputation, in either of two ways. We might
take evidence of that reputation as a kind of reference, trusting on the basis of
the reported experience of others. Or we might infer that the person or
organisation will value that reputation and behave in a trustworthy way, in
order not to damage that reputation. In this case, a reputation acts as a kind of
hostage built up from experience. Third, we might trust on the basis of
characteristics. We might, for example, decide that someone is trustworthy
37 Inglehart, Modernisation and Postmodernisation: Cultural, Economic and Political Change in
43 Countries.
38 6, Trust, Social Theory and Public Policy.
91
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
92
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
survey on our political behaviours and attitudes). However, in other situations

we may want to be anonymous (for example, when casting a vote), or not have
a strong preference about identification or anonymity (for example, when
being filmed for national television during a march or demonstration). Most
people are aware that different parts of the public sector hold information on
them that may, under certain circumstances (for example, the issuing of a
warrant, request from a senior police officer, suspicion by a benefit fraud
officer of fraud, etc), be matched, other data sources about us mined and more
complex profiles built up. Most people are at least a little uneasy about the
prospect, but accept it, subject to safeguards, codes of practice on information
ethics and systems of redress, where it is necessary to detect or prevent crime,
maintain military security, or, for more limited purposes, to build up a picture
for policy makers of who does and does not want or need what.40
Trust in the handling of such personal information therefore involves
having confidence that public and private bodies interested in mobilising
participation will handle that information according to ethical principles of
confidentiality, accuracy, non-disclosure, and of fairness in the method of
obtaining the information, such as not collecting excessive and irrelevant
material, permitting us (if possible without compromising the purpose of the
data collection) to see and correct their records and so on.
In a recent survey that colleagues and I conducted on the confidence of
British public in institutions handling personal data,41 the key hypothesis I
have put forward was supported. To a statistically significant degree,
goodwill levels of trust in personal data handling by central and local
governments were more likely to be achieved by those who trusted on the
basis of experience and reputation (which represents crystallised experience)
rather than institutional factors, despite the fact that the vast majority of the
sample trusted principally for institutional reasons (mainly, the existence of
data protection legislation). This suggests that trust in personal data handling
by public bodies is potentially fragile.
Moreover, grid-group theory would lead us to expect that different types
of cultural bias would yield different initial presumptions about the reasons
for trust and the tasks with which a person or organisation is entrusted.
40 6 et al, Public Trust in the Use of Private Information. See, also, Direct Marketing
Association, The DMA Census of the UK Direct Marketing Industry 1996; Direct Marketing
Association and Informix, The New Information Trade; Equifax, The Equifax Report on
Consumers in the Information Age; Equifax, Harris-Equifax Consumer Privacy Survey 1991;
Equifax, Harris-Equifax Consumer Privacy Survey 1992; Equifax, Harris-Equifax Mid-decade
Consumer Privacy Survey 1995; Hedges, Confidentiality: The Public View; Henley Centre
for Forecasting, Dataculture: Privacy, Participation and the Need for Transparency in the
Information Age; Hine et al, Privacy in the Electronic Marketplace; 6 and Briscoe, On the
Cards: Privacy, Identity and Trust in the Age of Smart Technologies; and Westin, Privacy and
Freedom.
41 6 et al, Public Trust in the Use of Private Information. Other research discussed earlier also
yielded information about the extent to which aggressive consumerism is to be found in
respect of the handling of personal information. 6 et al, Open Wide: Futures for Dentistry
in 2010.
94
Figure 3 provides a summary of the main hypotheses I would advance.

Fatalists will have no presumptions; hierarchists will seek institutional
reasons for trust; egalitarians will look for shared ascribed characteristics or
reputation; and individualists will be eclectic. I would expect hierarchists and
individualists to be more capable of reaching goodwill levels of trust with
regard to tasks than fatalists, who will have some difficulty in getting beyond
prudential or minimal trust. Egalitarians will occupy an intermediate
position.
Figure 3: First Port of Call Basis for Trust by Risk Culture
Sought after Experience
reason for trust
based
Reputation
based
Characteristic
based
Risk culture bias
Generic
institution
based
Specific
institution
based
Isolate/
Fatalism
Central
community/
Hierarchy
Enclave/
Egalitarianism
Individualism /
Libertarianism
CULTURAL CONDITIONS OF ENHANCED PARTICIPATION

Having now developed some tools with which to think about the varieties of
cultures of constitutionalism that may sustain or undermine willingness (and
perhaps also ability) to engage in democratic participation, and briefly
reviewed some of the available survey evidence, we can address the question
of increasing participation more productively. That question can now be
formulated more exactly as follows: what can we reasonably hypothesise about
the cultural conditions under which enhanced democratic participation might
be benignly sustainable? We must give our answer whilst recognising that:
(1) the Hirschman cycle cannot be eliminated, although the troughs of the
Hirschman cycles might be raised typically to higher levels of
participation than we observe in Britain today;
(2) sustainable participation requires the continued existence of all four types
of cultures (a great increase in the number of egalitarians might increase
participation in the short run, but would threaten the viability of society);
(3) a culture of constitutionalism is a complex system, spanning at the very
least affective, risk perception, behavioural, financial, and educational
aspects of everyday social and political life, the trends of which may not
always move in phase; and
95
(4) a key element of any constitutional culture of participation will be the

nature of public trust in the institutions affording opportunities for
participation (at least) to operate in conformity with certain procedural
principles, and perhaps also to deliver outcomes from participation that
are broadly acceptable and perhaps also are economically efficacious and
affordable?
We can now conclude that the following are conditions for enhanced
participation.
(1) Having fewer fatalists. A decline in the levels of constitutional fatalism is
needed, although not to vanishing point, is needed. This can generally be
pursued by increasing levels of educational attainment, and by
strengthening institutions for social mobility and enhancing their
trustworthiness, such as by providing meritocratic recruitment procedures
and some measure of greater transparency about their operations.
(2) Having an appropriate affective constitutional culture. A modest rise in levels
of esteem for, pride in, respect for, and trust in constitutional institutions
that afford opportunities for participation and redress is needed. Again,
transparency matters, with freedom of information and clearly understood
systems of financing for litigation being particularly important.
(3) Having a trust dynamic for constitutionalism. A broad range of reasons
should be furnished for non-fatalists to trust in the procedural fairness and
efficacy of institutions for participation. This trust should extend to at least
the contractual level and, in significantly more cases than at present, to the
level of goodwill. In particular, more trust should be based on experience
of the efficacious achievement of the constitutional actors, rather than on
institutional reasons such as legal commitments. This is possible only with
sustained effort and investment by leading organisations in their
establishing their trustworthiness to those with perceptions formed by a
variety of cultural biases. Institutions of scrutiny other than the selfregulation of politicians may be important here,42 as will governmental
openness, and a measure of pluralistic political competition.
(4) Managing perceptions of the risks of constitutionalism. Enhancement of the
levels of participation must not lead to negative cultural feedback, in the
form of heightened perception of risks of gridlock, excessive influence for
minorities with intense preferences, and perceived associated overload in
goals, taxation and expenditure. There are some available principal means
for working toward this, including recent German and Danish
experiments with consensus conferences on highly contentious issues, and
the use of citizens juries and deliberative polling exercises such as those
pioneered by James Fishkin and his colleagues in the US.
(5) Having an appropriate behavioural culture of constitutionalism. When the
42 6, Private Life and Public Policy, chs 1617.
96
willingness to use opportunities for participation afforded by the

constitution rises, it does so in tandem with the widespread acceptance of
an certain kind of ethic. This can be described as an ethic of restraint and
responsibility in the manner and scale of demand among participant
activists, in order to reinforce the dampening of negative cultural feedback
on risk perceptions. Again, mediation systems and consensus building
techniques are important here.
(6) Having an appropriate financial culture of constitutionalism. A modest but
significant rise must take place in the acceptable maximum threshold the
costs to the public budget of facilitating and responding to participation by
citizens as a proportion of the expenditure going on substantive public
services. With hierarchists and individualists, this can normally be
achieved only in situations where there it is made clear that that the
enhanced opportunities for participation will lead to effective policy
making without unacceptable abridgements of liberty.
(7) Having an appropriate educational culture of constitutionalism. Learning
systems including schools, private associations, workplaces, public bodies
and media must make significant efforts to inform citizens about
constitutional opportunities for participation, their costs and benefits, the
rights and responsibilities of citizens as participants, and the virtues of
responsibility, restraint and efficacy in participation. While American style
civics are not particularly effective, there are ways being developed to
build similar things into education across the curriculum and into
programmes linking schools and colleges with the world of work.
It seems to be necessary to satisfy these condition if the resistance to
increasing participation set up by certain cultural biases is to be overcome.
Naturally, each of these conditions will be unacceptable to fundamentalists
in each of the cultural quadrants. That is their point. They represent a series of
cultural compromises that could, it is argued, make culturally possible a
sustainable pattern of higher troughs in Hirschman cycles of participation.
BRITAINS CONSTITUTIONAL REFORM

PROGRAMME IN CULTURAL PERSPECTIVE
Using these arguments, we can make some remarks about the cultural basis
for more participation on the assumption that the constitutional reforms
proposed by the Labour administration for Britain are implemented as
expected.
Clearly, some of the constitutional changes will increase the number of
opportunities for participation by way of introducing referenda, new elected
bodies and roles, and new causes of action in the courts. However, it is far
97
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
conditions necessary for enhanced participation. I have identified the key

cultural conditions for an enhancement of participation that is sustainable and
benign. I have concluded that on the, admittedly inadequate, evidence we
possess, those conditions do not seem to be in place in Britain today, and that
there is little in the programme of the Labour Government that would put
them in place.
Democratic theory and practice has never been soundly based on an
understanding of the cultural dimension of politics. Most democratic theory
has assumed that the correct design of institutional rules, models of
citizenship, and formal opportunities to participate will be a sufficient
foundation of democratic life. Occasionally, this is supplemented by
requirement of the right kind of leadership, of civic education, and the
assertion of certain moral values.44 Traditional democratic theory has so
neglected the cultural dimension that it often reduces it to little more than a
question of legitimacy,45 or simply providing security to while preventing
excessive polarisation between distinct political currents.46
It should be clear by now that this will not suffice. A workable democratic
culture cannot be legislated into existence and legitimated by campaigns
and/or economic prosperity.47 Rather, it must be the product of careful
cultural mediation, dialogue and development. For example, the institution
building required to ensure the sustainable use of common pool resources
such as water resources or fishing environments involves processes of cultural
change before free-riding can effectively be managed.48
Even the most acute theorists of activist democracy have never really
specified the cultural processes that would be necessary for their vision to be
implemented. Part of the reason for this cultural blindness of radical
democratic theory is that its advocates generally comes from the egalitarian
44
45
46
47
Barber, Strong Democracy: Participatory Politics for a New Age.

Habermas, Legitimation Crisis. See, also, Connolly (ed), Legitimacy and the State.
Dahl, Polyarchy: Participation and Opposition, chs 78.
This final negative point is stressed heavily in Dahrendorf, After 1989: Morals, Revolution
and Civil Society, which warns people in East Central Europe against judging the value
of democracy on the economic well being its governments can deliver. Habermas
theory in Legitimation Crisis was, like that of the overload theorists and OConnor, The
Fiscal Crisis of the State, a theory of the endangering of the democratic order by economic
contradictions it could not resolve. Although the later work of Habermas attempted to
provide a cultural basis for legitimacy in his work on communication, it is still widely
regarded as culturally thin. For example, in Legitimation Crisis, the socio-cultural
system is simply a black box for delivering or refusing to deliver mass loyalty in
return for social welfare performances and, when loyalty is not delivered, there is a
motivation crisis hampering willingness to be economically active. While the later
communicative action model is a richer and slightly more pluralist account of culture as
dialogue, it still lacks the institutional richness and complexity of interactions of the
grid-group approach. For an historical account of the mistaken hypothesis about
legitimation crisis in the Western European Welfare States, see Klein, OGoffes tale.
48 Ostom, Governing the Commons: The Evolution of Institutions for Collective Action.
99
communitarian cultural bias and lack a sufficiently sensitive appreciation of

the dynamics of the interaction between cultural biases.49 The most common
story about that cultural change is that it consists in the slow and steady
accretion of social capital founded on norms of trust.50 This is not wholly
wrong, but it is simply insufficiently specific, both about the nature of the
culture in which social capital consists and about the dynamics of trust that
sustain that social capital.
The challenge for democratic theory and for social capital theory are to
become culturally literate and to become more practically useful in the design
of cultural policies. Cultural change among publics in liberal democracies is
not an aleatory process (contrary to the view of fatalists). It is one in which
policy makers must make interventions, even though certain tools are
constitutionally forbidden them.51 Though any conceivable state must make
efforts to change those cultures that sustain unambiguous social evils, the
principal requirement of a sustainable democratic order of participation is that
it allows a creative tension both between the differing cultures of sections of
the sovereign people and between the democratic impulse to respond to
popular culture and the impulse towards leadership and problem solving that
must lead popular culture. Those cultures must compromise to the degree
sufficient to allow them engage constructively with one another on the terms
of the cultural settlements struck within the State.
That is a tall order, but an achievable one. What is neither achievable nor
desirable is an end to the cultural cycle of participation, nor a permanent
frenzy of participation for which, as Wilde famously put it, seven evenings are
not sufficient in a week, nor a rise in participation based on continued
dissatisfaction with services. With a greater sensitivity to the cultural
dynamics of democratic life, it may be possible that a settlement between the
cultures of constitutionalism in Britain may yet emerge.
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
PARTICIPATION AND PASSIVITY:

NO ROOM AT THE TOP
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
Discussions of participation in Britain usually begin with figures revealing a

low level of involvement of citizens in political activities and end fairly
quickly, largely because there is little information, with the conclusion that the
British people are passive. Indeed, the large cross-national study of civic
culture in Britain and four other nations in the early 1960s by Gabriel Almond
and Sidney Verba concluded that one of the secrets of Britains stable
democracy was the passivity, or deference, of the people themselves.1 The
most recent study of political activity, that by Geraint Parry and his colleagues
in the 1980s, found that Britains national and local political elite of around
50,000 men and women could fit comfortably into Wembley Stadium. 650,000
complete activists and a relatively active quarter of the population was
more than balanced by a generally passive half of the population.2
In this speculative discussion, I am beginning from the other end of the
spectrum at the top. Much of what I say will be familiar. The elite culture of
British politics allows little room for democratic practice. This culture is
dominated by the traditions of strong government and excessive secrecy.
Politicians at Westminster live in a political world of consent which assumes
that ordinary people do not actually take the initiative in deciding what they
want, give consent to what they are given, and every so often at elections
might transfer that consent to another political party. Whitehall has a Platonic
guardianship ethic which imbues the bureaucracy with a conviction that their
impartial and objective processes allow them to determine the public good
quite independently of what the public may think or desire.3 A few years ago,
when seeking to explore this ethic for the purposes of auditing democracy in
the United Kingdom, my colleagues and I met a group of senior civil servants
and explained that we would conduct our audit within the framework of two
basic democratic principles, popular control and political equality. Popular
control, sniffed one madam, surely you dont mean that!. One of the clearest
1
2
3
Almond and Verba, The Civic Culture.

Parry et al, Political Participation and Democracy in Britain.
Weir and Beetham, Political Power and Democratic Control in Britain, nb, ch 2.
101
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
Participation and Passivity: No Room at the Top
services consumer-responsive through such devices as the Citizens Charter,

league tables of results, and so on.8
In August 1996, I took part in a debate on BBC Radio 4s In the Dock
programme with three quangocrats, two of whom were passionately opposed
to measures of local accountability on the grounds that quangos were simply
agents of the central State:
We [the board of a NHS trust] cannot be held responsible for the level of
government expenditure on health or the number of beds that are provided.
The trust is part of a National Health Service, and the policies and strategy, the
standards and the requirements while it remains national come from the centre
and the local agencies have to operate within what one might regard as this
straitjacket.
One of the guests was also of the opinion that:

A lot of whats talked about in terms of local control has, I suspect, more to do
with wanting to make different policies locally rather than control of the
implementation of policy that is set out nationally. And that really isnt
realistic, it cant be done in that way.
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
Weir, From strong government and quasi-government to strong democracy, in Hirst

and Khilnani, Reinventing Democracy.
Cabinet Office, Quangos: Opening the Doors.
103
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
enabling legislation allows it effectively to be passed as a succession of

statutory instruments.10
The structures of local government have been made more open, but not its
culture nor its practice. Of course, there are isolated examples of good practice
and experiments in new forms of local democracy, such as citizens panels and
juries. Some authorities have gone in for devolution to neighbourhood
councils. But even here the practice is unguided by an understanding of basic
principles of government. Neighbourhood councils (like parish councils) often
themselves degenerate into interest groups, and become dominated for
example by a particular tenants or residents group. Local authorities have
their own policy networks. Dominant local Labour parties can swamp the
council, trade unions and the voluntary sector and public decisions are shaped
by the balance of power within the party rather than by the public procedures
which give them legitimacy. Public sector trade unions, as the Conservatives
pointed out in the 1980s, may therefore wield excessive influence over the
policies of a local council. In areas of one-party control, abuses such as the
Poulson scandal can erupt. But local business elites can as often employ the
local Conservative Party as a formal instrument of their own informal, unseen
and unchecked power. Such private-public networks of business, land and
property interests are by their nature less vulnerable to investigation. Our
Friends in the South could nonetheless make television drama quite capable of
rivalling Our Friends in the North. This overview, of course, misses out
initiatives such as the Citizens Charter, which actually began life in local
government (at York), complaints procedures and other attempts to make
services responsive to ordinary people. But, as William Waldegrave argued,
they function as instruments of consumer rights, not of democratic
participation.
It is not surprising, therefore, that politics is a turn-off for most citizens,
and the idea of participating in it alien to them. In terms of peoples interests,
the Henley Centre found that politics ranked a poor 32nd. Actually, politics
was equal 32nd with going to the circus, though, for all the affinities between
the two spectacles, it is a fair guess that most people find the circus less remote
than politics. More seriously, the Parry et al survey found that even talking
about politics and national affairs was a fairly rarefied activity. Only one in
ten people talked about politics very often and fewer than a quarter even
fairly often. As for actually taking part, very many people disqualify
themselves from the start simply because they do not feel sufficiently
confident to seek to bring their own personal influence to bear on official
policies and practices. For example, two thirds of respondents in the Parry et
al survey felt that people like them could have no influence over MPs.11 Such
10 Weir and Beetham, Political Power and Democratic Control in Britain, ch 7.

11 Parry et al, Political Participation and Democracy in Britain, p 173.
105
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.
12 Parry et al, Political Participation and Democracy in Britain, ch 10.

106
The role of the public is to choose between different parties at periodic

elections and between elections and to refrain from back-seat driving.13 In
sum, the majoritys role is criticise if they must, but not to seek to participate
in governing. But the fact that most people do not go out to participate in
meetings, to hand out petitions, to lobby, campaign or protest, does not mean
that they are necessarily either deferential or passive, or are happy to leave the
direction of their lives in the hands of politicians. They may be just too busy,
too tired, too defeated; they may, as the late Tony Crosland once said, be so
materially content that they spend most of their time on leisure activities.14
Furthermore, since Parry et als data is now out of date, a more highly
educated and more demanding population may well be more active now than
in the 1980s, as MORI polls in 1991 and 1995 for the Rowntree Trusts State of
the Nation project, and the 1994 British Social Attitudes (BSA) survey suggest.
There are, in short, alternative ways of interpreting the data and the temper of
the British people. I will briefly develop one interpretation which is partly
justified by some poll data, but is born also of my own political experience in
local and national politics.
The Parry et al study itself finds evidence of latent activism. More people
than those who had taken any of their list of actions in the past five years say
that they might or would probably or certainly take such action in the
future. Only when it came to party political work or aggressive protest did a
large majority of people say that they would never take action.15 Again, the
State of the Nation polls and the 1994 BSA survey indicate a widespread, and
growing, willingness to act when the circumstances justify it. As Professor
David Donnison surmises in an unpublished paper for the Democratic Audit:
it is presumably from these latent activists that emerge the huge crowds
which occasionally surprise the authorities when a national issue, such as the
poll tax, pit closures or a march ban, or proposals for a radioactive waste
dump or travellers site locally, ignite popular feelings. Their presence, he
adds, also explains the large majorities of the electorate who vote in general
elections. The Parry et al study also refers to previous surveys, one of which
by Barnes et al argues that, since political behaviour is contingent on particular
events, it is more important to study the readiness of people to act and be
mobilised than actual participation. This readiness, they say, is an abiding
property of a wide sector of the whole population.16 They found that one in
10 people would take part in a rent strike and 7% in an unofficial strike or
blocking traffic, but the overwhelming majority would never take any of
these actions.17
13
14
15
16
17
Schumpeter, Capitalism, Socialism and Democracy.

Crosland, A social democratic Britain, in Socialism Now, p 89.
Parry et al, Political Participation and Democracy in Britain, p 423.
Barnes et al, Political Action: Mass Participation in Five Western Democracies, p 58.
Ibid, p 548.
107
Broadly, my interpretation of the sparse information we have is that

Britain could be described as a reactive rather than a passive democracy.
Most people are not interested in politics and they increasingly distrust
politicians.18 But they belong to what is still an active civil society. In the
1980s, two thirds of the population were members of at least one voluntary
association; 27% were trade unionists (another 30% were past union members
a sign of the times!), but only 6.8% were members of a political party.19
Much of this voluntary belonging will be a natural extension of family or
personal interests. More active members will have joined a committee, helped
organise a fete, sold raffle tickets, and so on. In other words, the experience of
organising in concert with others is there.
This is not, however, experience which will often be directed at national
issues, even those which opinion polls tell us people feel deeply about, such as
the state of the NHS, rising unemployment, crime rates, etc. Issues of this kind
are both long-running and complex, and often resistant to the control of most
practising politicians or political parties themselves. Even so, according to the
1994 BSA survey, only about one person in five agrees that politics and
government sometimes seem so complicated that a person like me cannot
really understand what is going on, and less than a third accept that people
like me have no say in what governments do. But few people try to exert an
influence on such issues themselves, except through the ballot box.
Occasionally, a major national event, such as the introduction of the poll tax,
will move masses of people to protest on the streets or join campaigns, but
people are largely moved to action at local level. There are of course
complete and other categories of activists in more or less continuous action
locally like the members of an amenity group, or residents or tenants
associations, or local political activists who campaign for a major party or sell
newspapers for a smaller grouping. But people who belong to the three
quarters of the population who are generally inactive can be mobilised by an
event or threat into participating directly in local affairs. This reactive
democracy seems to me to reflect the pragmatic keep yourself to yourself
attitude of the majority of people.
I have experienced this type of reactive participation many times during
my time as a local activist, councillor in Hackney, Director of the Citizens
Rights Office (CRO), and in the Child Poverty Action Group. In the 1960s, I
was one of a small group which decided to rally local inhabitants of a
rundown neighbourhood in Hackney which had been scheduled for the
bulldozer by the local Labour council. The population of owners, leaseholders
and tenants had been demoralised by the Governments decision to approve
the demolition of a first tranche of the area after the residents had organised a
18 Jowell et al, British Social Attitudes, 12th Report, 1995, ch 7.

19 Parry et al, Political Participation and Democracy in Britain, pp 8990.
108
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
There are, however, rewards, usually unexpected, from participation.

People find satisfaction in working purposively together and finding
themselves able to perform tasks they had always thought were beyond them.
I have vivid memories of the pleasure of particular moments. A group of
leaseholders, well briefed at last by the solicitor they had combined to employ,
successfully confronted their landlords estate managers knowing that their
landlord could no longer block their ability to obtain their freeholds. Tenants
comprising a delegation to a council explained to members just why they
were breaking the law. Single parents on benefit were interviewed in a hot
BBC Newsnight television studio, and walked down grandiose Pugin
corridors in the Palace of Westminster to lobby for change. (Do you think
theyve laid this lovely red carpet down just for us?) There was pleasure too
just in the mischief of wheeling prams back and forth to block commuter
traffic on a rat-run road, or nicking floorboards from a demolition site to fence
off a dangerous site nearby. (Mike said we could take them. Theres no Mike
on this site! Will a tenner do it?)
There were two features common to most of these cases. The first was
usually the presence of statutory rights or processes which gave the
reactivists a handle on their common problem or campaign. These rights and
processes were not necessarily especially robust, but they existed and
bolstered a more diffuse popular belief in a right to fair and equal treatment. It
is often not realised that individual rights often provide a means to demand
and even enforce collective redress. The second was the advice and support of
a small, professionally organised group. In Hackney, this group was
composed of active local residents themselves. In the CRO, the staff were
experienced advocates who knew the law, the processes of local government,
etc., and who had access to specialist lawyers, public health inspectors,
valuers, and the local and national media. Where this second element is
missing, it is my view that the potential for protest or participation is often
choked off or ends prematurely when a local authority accepts a petition and
plays for time, or a solicitor sympathetic to the big landlord in the area fails
fully to explain leaseholder or tenant rights, or a tribunal rejects a claimants
individual case.
This is why I began this paper at the top. The point is that the culture of
government and public life is pitched against ordinary people seeking to
resolve a burning issue, to protest against a particular decision, or to solve a
problem. This certainly is true locally, and even more so nationally. The
formal channels for participation or protest are slow-moving at best and often
seem designed simply to prolong any response until every spark of initiative
has drained out of those who have raised an issue. The courts and the
Ombudsman also grind exceeding slow. Further, people often lack the skills
necessary to make any headway with officialdom, which requires composing
letters, using the telephone effectively, dealing with a bland person secure
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
relative no go areas. Participation is even shaped by our culture and its

constraints. One signs a petition, or contacts a councillor or MP, rather than
collectively organising an alternative policy choice or mounting a lawful
public protest. Yet we know from public opinion polling that people are
capable of forming views about most public issues which are remarkably
coherent and consistent if examined from a variety of angles.
Are people happy with this state of affairs? Focus groups organised in line
with the priorities of political parties tell us they are. Opinion polls tell us they
are not. Let me conclude by giving just one example. In 1994, ICM carried out
an opinion poll on behalf of Channel 4 to inform their Democracy Week.
They asked people whether voting every four or five years in a general
election gave them sufficient power, how much power they had between
elections, and how much they should have. By a majority of two to one,
people agreed that the act of voting alone did not give them enough power.
About four out of five people said that they have a little power between
elections, or none at all. How much power did they want? Nearly half of them
said that they should have a fair amount of power between elections. A third
said they should have a great deal of power. Which leaves about 16% who
may fairly be described, in attitude at least, as passive.
112
CHAPTER 6
PARTICIPATION AND LOCAL GOVERNMENT
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
Stewart, Democracy and local government.

Rhodes, Understanding Governance: Policy Networks, Governance, Reflexivity and
Accountability, ch 6 usefully summarises three phases of intergovernmental relations
that clearly demonstrate what Rhodes calls the asymmetrical relationship between
central and local government. Central government depends on local government to
deliver or ensure the delivery of services, but it also has the ultimate power of
legislation and money, which it has exercised to the full during the period analysed by
Rhodes. How far, if at all, this will change under the new government remains to be
seen. By autumn 1997, that government had already put the Community Plans
proposed in its manifesto on the back burner and was enhancing the role of
inspectorates and the Audit Commission in taking action against failing councils,
schools, etc.
Gaster, Quality in Public Services: Managers Choices; and Gaster, Quality in Local
Government: Next Steps. Citizens Charters were originally introduced by York,
Islington, Harlow and some other councils in the late 1980s, recognising that local
people, as citizens and users of services, had a right to know what the council intended
to do and to complain if those intentions were not carried out. The 1991 Prime
Ministerial initiative had an ideological focus on individual consumers, not citizens, and
was at first a very top-down affair. Nevertheless, it did highlight the issues of rights and
redress in relation to public services, while in recent years the Citizens Charter Unit has
encouraged the development of a more bottom-up approach to the development of
Charters which explicitly recognises the role of community in their development. The
Citizens Charter is likely to be revised by the Labour Government after a consultation
exercise in the autumn of 1997.
Lowndes, Citizenship and urban politics.
113
Reflecting this intention, or hope, corporate statements of values or

mission would nowadays be incomplete without some reference to the role
of the council within the wider community.5 This is usually supplemented by
a stated intention to develop new trusting and credible relationships with that
community. The question for this paper is: are these intentions matched in
practice? Can local government become the crucible for new relationships
between the citizen and the State, and the demonstration project for active
participation in other public arenas? And if the answer is yes, can an
underlying philosophy be detected that could help those involved the
elected Members and senior officers, the front-line workers and, most of all,
the public see where, how, through what activities and at what stage of the
policy process participation could and should take place? Do these key
stakeholders have the rights and responsibilities to enable them to foster and
take part in an active process of participation? If they have the rights, should
these be entrenched in law?
Of course, it may be the case that the language of participation is merely a
cover for some tokenistic and possibly manipulative activity behind which the
machine continues as before. Local government has a tendency to jump on
managerial and policy bandwagons (and has often been forced onto them)
and the sceptics might regard the language of participation as simply the
latest of these. However, as someone who has been involved in local
government over the last 20 years, both as an active participant and as an
observer, I have ranged myself with the optimists. It seems to me that a real
shift is taking place, not just in what Gerry Stoker called sponsored
participation (that is, participation/consultation initiated by governmental
organisations), but also in local governments ability to respond and work
with unsponsored (spontaneous?) user, community and pressure groups
wishing to engage with the policy process:
Viewed from the dizzy heights of the perspective of radical advocates of
maximum citizen participation, all officially sponsored schemes will appear
inadequate. Those who adopt a less utopian perspective recognise that,
although there are limitations, many local officials and councillors are
committed to involving the public. Officially sponsored participation is flawed
but nevertheless valuable.6
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
Eg, Camden Council, Were Listening.

Stoker, Local political participation, p 135.
114
Participation and Local Government
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.
Participation, citizenship and decision making

The idea of participation is closely linked, in the minds of those who write
about it and in the minds of those who are trying to promote it, to ideas about
citizenship and democracy. Citizenship and democracy in turn relate to
processes of government (hence some writers concern about participation in
the electoral and governing process itself) and to the policies and actions
(delivered as services and projects) affecting citizens lives. Thus, Mike
Geddes writes that: a model of participatory democracy is one in which a
knowledgeable and active citizen body is capable of taking a direct and
sustained interest in the governing process. 9 Geddes suggests that
7
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
requirements for this model to become a reality include a strongly developed

civil society, an open institutional system, and participative and accountable
political parties. His focus is very much on the structures of democracy,
mainly in relation to the representative aspects of local government (getting
more people to vote; supporting councillors in their work, etc), but also
involving attempts to promote the direct involvement of citizens in political
structures through, for example, neighbourhood committees.
An alternative or complementary approach is to move beyond the
blunt mechanism of the ballot box 10 to focus on achieving change.
Participation the practice of citizenship is, Marian Barnes suggests in her
analysis of community care, a process of collective action based on
communities of identity or of interest, where those who have been defined as
objects of policy making become active subjects involved as co-producers,
both at the level of policy making and in the implementation of day to day
practice.11 The notion of action, of active involvement, is central to the concept
of participation in the social policy sphere. It is not simply the opposite of
apathy (although a dictionary definition might see it that way). It implies
sharing an activity, undertaking activities with other people. Ann
Richardsons perception of participation was that, by introducing a new set of
actors, policy formulation and policy execution would be influenced in a way
that would not otherwise have happened. However, she appeared to exclude
from her definition participation in voluntary associations, focusing
exclusively on participation with officialdom and its services.12
This seems an odd and artificial division. Gerry Stokers review of what he
calls political participation, which has already been mentioned,
distinguished between officially sponsored participation (public meetings,
forums, co-options, etc) and other forms of participation established to meet
group members own needs (for example, in local associations, groups and
clubs). The lives of the unsponsored groups may or may not cross paths with
the policy processes of organs of government, but it would be unwise to
exclude them from the notion of participation as it relates to local
government, even if it is not participation in local government. Even if
participation in community and voluntary groups was apparently only
participation for participations sake the communitarian perspective
according to Stoker13 such involvement can foster a sense of citizenship and
self-esteem which may (or may not) subsequently lead to policy related
participation.
10
11
12
13
Prior et al, Citizenship: Rights, Community and Participation.

Barnes, Care, Community and Citizens, p 45.
Richardson, Participation, p 9.
Stoker, Local political participation.
116
In practice, council-sponsored structures established in a vacuum do not

have a very high chance of success, however this is defined. People invited to
join council sponsored user groups or neighbourhood forums feel more
confident and legitimate if they have a base of some kind in the community.
Sometimes local authorities wanting quick results have to wait for the slow
processes of community development to nurture and support local groups
which, on the face of it, have nothing much to do with the council. Only then
can the council develop enough credibility for those same people to feel able
to become directly involved with it.14 The two types of participation go hand
in hand.
The purposes of participation

Assessing what a process of participation may hope to achieve is a major issue
which will be addressed in much of the rest of this chapter. However, it is
worth being reminded of the now much-used ladder of participation, first
developed by Sherry Arnstein.15 This was adapted for local government by
myself and Marilyn Taylor,16 distinguishing between participation in local
government by people as consumers and by people as citizens. It is a model
that is now quite widely used in local government, helping to define the
objectives and expectations of processes of consultation and participation.
Arnsteins ladder started from a recognition that, in order to have any say
at all, the first stage in a process of participation is to give and receive
information. Without adequate information (the question is, how much?),
local people have no hope of being able to question, challenge or take part in
decision making processes in a meaningful way. Taking part may then take
the form of giving feedback on existing policy, services and new ideas or
proposed decisions (a consultative process) or suggesting and making
recommendations for change (an influencing, advisory process). Taking control
of some aspects of the process, generally within an existing policy framework
(a tight-loose model of devolved power); sharing power; and ultimately
working in a partnership, for example in the management of facilities or in
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
developing or choosing rules of action,17 are further levels of participation

which increasingly assume equal power, at least in theory, between
institutions of government and the public who are participating.18
What is to be achieved through public participation?

It is sometimes said that people dont want to participate, they just want good
services.19 It is, indeed, unlikely that very many people at any one time will
be actively involved in some form of participation, at least as far as it engages
with local government. However, in our 1993 study of councils who had for
some time been developing mechanisms for public involvement, Marilyn
Taylor and I found that what was important for some local residents was not
that they would necessarily attend every meeting, but that they knew a forum
existed where they could raise and debate issues with the council if they
wished. This could be called latent participation. It would involve removing
the barriers to involvement dependency, exclusion and disempowerment
that could otherwise prevent people from becoming involved how and when
it suits them.20 The key lesson in every single experience of participation is
that the Councils agenda is not necessarily the peoples agenda.
Whether or not people actually participate, it is as well for a council to be
clear about what it hopes to achieve by developing mechanisms and removing
the barriers to participation. Doing this involves a lot of expensive work, so
why do it? It is often difficult to disentangle objectives and expectations from
process. Sponsored participation can often appear to be an end in itself. If
objectives are not explicit, the questions of what is to be achieved and what is
the contribution of local people to this are left unanswered. This vacuum
17 Walsh et al, Contracting for Change: Contracts in Health, Social Care and Other Local
Government Services, ch 2, discuss the institutional rules, the rules of action and the
collective choice rules by which organisations decide how to behave. The idea of
collective choice rules (a concept developed by Eleanor Ostrom in Governing the
Commons: The Evolution of Collective Action) suggests that both policies and how they are
generally to be implemented can be the subject of collective deliberation and joint
decision.
Voluntary Action into the 21st Century; and Skelcher et al, Community Networks in Urban
Regeneration.
19 Corrigan, Recreating the Public: A Responsibility for Local Government argues that the first
focus of a council worried about residents alienation from government should be on
improving the quality of its services. By engaging and reassuring local people in their
role as consumers, they may eventually feel inclined to move to the wider relationships
incorporated in citizenship. Encouraging local people to be active in helping to draw
up service guarantees and charters would a method of starting this process.
20 Stewart and Taylor, Empowerment and Estate Regeneration: A Critical Review, identified
the need to fight exclusion and marginalisation (in this case on housing estates) both
through positive acts of shifting power to the estates, and through practical and
confidence building measures to combat isolation and dependency. They argue for a
combined, flexible and eclectic approach to participation.
118
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.
Who should be involved? Consumers, citizens, communities

and councillors
The idea that participation is one means of increasing choice for individuals as
consumers needs to be examined critically in relation to the services provided
by or through local government. Most services are in reality universal
(provided for everyone without distinction), rationed (restricted through
eligibility criteria and often by lack of knowledge of what is available), or
imposed on people and organisations by law. Few are available by choice (for
example, leisure and libraries).
Consultation, feedback and participation are therefore doubly important
as means of giving voice to those who do not have choice or the power of
exit. That voice has by no means yet been developed, though the academic
language of consumerism might suggest that it has. Most local government
consumers (not customers as they are often called) have very little power
and even less inclination to disturb the status quo and call attention to
themselves by asserting their procedural rights. Unwilling consumers are
even less in a position to do this.
However, as discussed earlier, the rise of consumerism, insofar as it has
actually happened, has been one apparent cause of local governments
uncertainty about its role and whether it will survive. As numerous
commentators have pointed out, to focus all the effort on involving direct
consumers of services (as the Citizens Charter and most of the pre-1997
119
legislation around consultation did) excludes key stakeholders, namely,

people in their role as citizens. As John Stewart has argued for many years,
everyone living within the boundary of a local authority has certain rights of
citizenship derived from residence, the vote and payment of taxes. These are
the rights to be informed, to be heard, to be listened to and to receive
explanation, and they imply the existence of the mechanisms of
accountability. Arguing the case for public accountability (in contrast to
consumer responsiveness), Stewart stresses the need for the public as citizen
to be empowered to share in decision making on issues in the public domain.
The citizen may act as an individual or, in the context of this discussion of
participation, as a member of a community (who may also be collective
customers). Empowering the public as community involves giving them the
right to participate in and, whenever possible, determine issues affecting the
community through direct control and through such institutions as
neighbourhood forums or community councils. Empowering the community
involves the creation of new democratic frameworks that may be concerned
with the full range of activities that can be undertaken by local authorities on
behalf of their community.21
The emphasis on the involvement of citizens and communities is
particularly relevant to discussion of services which people want but cannot
have, for services that they or their children (or parents) may want or need in
the future or which, because of discriminatory practice, is not accessible or
suitable to a particular groups needs. Citizen participation is therefore
essential both for discussing services at the strategic level, where viewpoints
beyond those of the immediate consumer will be important, and to increase
and promote the involvement of excluded and under-represented groups in
society.
Participative democracy does, of course, need to be firmly linked with
representative democracy. In the context of local government, this means that
the role of elected councillors is a key issue. Some elected councillors feel that
they have been elected to represent the will of local people and that no further
public involvement is necessary. They tend to see power as a finite entity.
They fear that giving power to local people (through committees, user groups,
forums and the like) will mean the loss of their own power. Other councillors
recognise, first, that because of low local electoral turn-outs, they do not
necessarily have a very strong mandate; second, that local people generally
know a great deal more about any one issue that they can possibly do; and
third, that knowing what local people think and listening to their suggestions
and ideas is likely to enhance their own power. They are also not afraid of
losing power, because they see that, among the multiplicity of interests and
stakeholders, their particular role is to make the final decision.
21 Stewart, Accountability and empowerment in welfare services, p 300.

120
It is the role of elected representatives to reconcile, to balance and in the

end to determine the different demands upon them.22 Through processes of
public participation, better decisions will be made, resources can be targeted
and used more effectively, and needs can be met more effectively. Councillors
who perceive these benefits, as well as supporting some of the more
ideological purposes of representative democracy, often have a difficult task
in persuading their fellow councillors of the advantages of greater public
participation.
However, if it is loss of power that councillors fear, it may be that, in the
enabling state, they can be persuaded that the public, rather than being the
enemy, is in fact a potential ally. Allegiance with the public can help put
pressure on the unelected organs of local governance and can strengthen the
councils hand in negotiations with unaccountable providers (direct service
organisations, private firms and voluntary organisations).
The role of local government

Changes in the role of local government, notably the shift from being a direct
and main - provider of services to being a co-ordinator and enabler of
services, has meant that local authorities must now work on a much broader
canvass than before. Through partnerships, networks and contracts, councils
are necessarily working with other statutory bodies (for example, Training
and Enterprise Councils (TECs) and health providers), with voluntary and
community providers and with the private sector. In this new world of local
governance, authorities increasingly indirect relationship with their own
electors has meant that those councils committed to involvement and
participation are having to think how best to secure it in novel ways.
Underlying principles of empowerment, equality, accountability and public
service are not necessarily shared by those with whom they now have to work
and who now work with the public. This means that, as well as working on
developing new relationships with the public, councils are having to educate
their partners in the principles and practice of participation.
It also means that, while participation can and should focus on the details
of service delivery, as will be suggested below, the urgent requirement, as far
as councils are concerned, is to enable people to become involved in the
complex processes of purchasing, commissioning and enabling services to be
provided by others. This more strategic role involves deciding not only the
pattern of services and who should provide them, but also considering
whether the services are needed at all in their present form. Should/could
new services, tailored more accurately to actual need, be developed instead?
These are questions that are rarely debated (and are difficult to debate). But
22 Stewart, Democracy and local government, p 48.
121
new forms of participation, including in particular citizens juries, and old

forms such as neighbourhood forums provide opportunities to consider
strategy and planning and are a highly educational experience, not only for
the participants, but also for councillors and officers.23
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
overall pattern of services or capital projects, and to involve local people in

voicing their own views, in controlling their own lives. This strategic
empowerment will normally involve people and communities (determined
by geography and by interest/origin) in their role as citizens. It could in
particular target excluded groups as the most disempowered members of
the community.
If public participation is genuinely about change, and not about acquiring
legitimacy to go on as before, every aspect of local government must be open
to question. And if citizens are encouraged to put their questions, those will be
different from what the professionals, managers and (often) councillors expect
or even want. This approach to public services can be called the citizen
question approach.25 My suggested definition of the citizen question is as
follows. A citizen question is a question defined by the citizen, either as a
direct recipient or applicant for a service, or as an expression of wider
concerns, for example about equity, access or priorities. The question can
take any shape or form, ignoring present patterns of provision. It can be posed
collectively or individually. Citizen questions are more likely than not to
challenge present practice, and more often than not they will require an
integrated response, cutting across organisational, bureaucratic and
professional boundaries.26
Citizens do not neatly order their lives so as to fit in with existing service
patterns. This will be even more the case when thinking about the quality of
life and the environment in which they live. Even when this is not formally
required by external rules (legislation, regeneration competitions, etc), this
approach must involve other agencies and organisations operating at the local
level. The way organisations respond and gear themselves up to respond, to
develop integrated, holistic approaches at all levels, will be one test of success
in participation.
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
decentralised authorities) and is accountable through democratic elections. It

is therefore hardly surprising that a good deal of attention has been paid to
the question of participation in a local government which is responsible for
and affecting so many people in their daily life and in moments of crisis. Local
government is very powerful and has great responsibilities. It is also very
complex and changing rapidly. It is not a single service, but involves a huge
range of very different services. It has responsibilities for the social, economic
and physical well being of its residents and of the environment. It can develop
enormous capital projects such as city centre improvements and estate
regeneration. Finally, its democratic legitimacy, its relationship with local
people, and its actual role in their lives are all now being questioned.
Participation by consumers, citizens and communities is seen as a way of
strengthening the role of local government itself, as well as contributing to the
wider projects of democracy and citizenship. Participation can take many
forms, serve a variety of purposes, involve different groups of people, and
operate at different levels, from the strategic to the day to day service. It is
possible to claim that local government is well ahead of the field when it
comes to the concept of participation. However, it still has a huge amount to
learn, and is only a few steps along the road when it comes to actual practice.
The next part of the paper looks (briefly) at three examples of that practice,
aiming to identify some of the key issues that help or hinder the development
of participation at the local level.
PARTICIPATION IN PRACTICE: THREE CASE STUDIES

The three case studies described here are all drawn from research completed
in 1997 by the writer. They reflect the three levels of involvement identified
earlier in the paper the micro level of day to day involvement in service
production; the meso level of planning, shaping and resourcing services; and
the macro level of strategic values and objectives and of citizen
empowerment. The case studies are:
(1) service delivery: involvement of users and carers in community care
assessments and care planning;27
(2) service planning, community needs and priorities: local service partnerships
in Burnley and Coventry involving a range of statutory and voluntary
agencies and the community;28
27 Willis and Gaster, Quality Standards of Assessment and Care Management.

28 Gregory, Transforming Local Services: Partnership in Action.
124
(3) community empowerment: an evaluation of the early stages of Walsalls

Community Empowerment Single Regeneration Budget (SRB)
programme.29
Service delivery: a difference of views

A small research project was undertaken in the first half of 1997 to help a
Social Services Department consider its service standards in relation to
community care planning and assessment. The main aim was to learn what
services users thought about various aspects of the service. Questionnaires
were used to ask individuals what they thought of the reception service (in
person or on the telephone) and what their experience had been of a so called
simple assessment.
The reason for including this study here is that the second part of the
research, a qualitative, interview based approach, was able to compare the
views of users, carers, front-line staff and managers about the more complex
processes of comprehensive assessment. While the subject of the research
was not itself a process explicitly intended to promote participation, it is easy
to see how it could lead to this. The findings highlight what the different
stakeholders identified as the important elements of the technical (fitness for
purpose) dimensions of the service. These stakeholders also gave comments
on the non-technical dimension, the quality of the interaction between
provider and member of the public. Questions were also asked about why the
desired service characteristics were not necessarily achieved, and interviewees
were invited to make suggestions for improvement.
Taking the results of this pluralistic, qualitative research and the findings
from the surveys of users, the research was able to suggest some new service
standards that would enable the process of community care assessment to be
more focused on the needs of users and carers, while also taking into
consideration the pressures staff and managers were experiencing. This
should provide a useful starting point for a participative process of
negotiation between the key stakeholders, possibly bringing in some that were
not involved in the research, such as senior managers, councillors, and
representatives of provider organisations.
The full findings are not, of course, reproduced here. However, two tables
developed to display the results analysis demonstrate why it is important to
find out the views of those producing and receiving services, and then to have
the opportunity to discuss and negotiate around the findings (this activity is
29 Gaster and Sullivan, Evaluating Community Empowerment in Walsall, 199697: An

Assessment of the First Years Process of Empowerment of Communities Living in the Seven
Neighbourhoods of Walsalls 19962003 Single Regeneration Budget Scheme.
125
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)
Get lots of the

right people
involved,
generate ideas
and options
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)
See and sign

the
assessment
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)
Tell you the

rules (eg, in
case you
need to
complain; or
your right
as carer to
see the
assessment)
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
Table 2: Front-line staff views

Information Knowledge and Options
professional
and choice
expertise
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
Check what the

client already
knows about
own condition;
check awareness
of referral; what
do they see as
the problem?
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
Find out the

exact nature
of the service
on offer by the
provider (eg,
what can be
done in 1530
minutes etc of
home care)
Clarify the role

and powers of
the Social Security
Department
Give
accurate
information
about the
charging
system
Be informed, Check with

do your
managers when
homework, appropriate
plan in
advance,
have the
consent
forms ready
Sort out the

key questions
of which
needs take
priority?
(living alone,
ethnicity, etc)
Provide
opportunity
to reflect
on and
challenge
the
assessment
Identify a
range of
providers,
both inhouse and
external
Ensure that there

is informed
consent to
decisions; go
through the
assessment with
the client
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
Service planning partnership with the community

A two year action research project was developed by the Priority Estates
Project (PEP), with the support of the Joseph Rowntree Foundation, to work
with two local authorities (Burnley District Council and Coventry City
Council) on developing a bottom-up and comprehensive approach to service
delivery on deprived estates. Neither site was pristine Coventry had already
been working for three years to implement an area co-ordination policy in
Wood End, while a lot of effort had been put into developing an Estate
Management Board in Burnley West End. In theory, therefore, some of the
structures needed to make a targeted local service partnership work were
already in place. In Coventry, the main change was the provision of a
community worker, aiming to reinforce and develop active involvement in the
work from within the local community. In Burnley, the Council appointed an
area co-ordinator, while PEP employed a community development worker to
work with the co-ordinator. In both places, PEP consultants were to be used to
guide and steer the project where necessary, and to collect data for monitoring
and evaluation.30
In both places, the aim was to work with all the service agencies operating
locally, whether or not they had bases in the area. These included the
Councils own departments and, where relevant, other tiers of local
government, public agencies such as health authorities and providers, the
police and the local TEC, and local businesses and voluntary organisations. At
the same time and it was the comprehensive nature of these initiatives that
distinguished them from other localised initiatives the service providers
were to work in partnership with people from the community. The primary
activity was to identify local needs and priorities and to develop a local Action
Plan. A structured approach was taken, based on processes of problem
solving and action planning. This was new to Burnley West End. It was
already part of the normal, local process in Wood End, Coventry.
The aim of the external evaluation was to consider how far the original
objectives had been achieved. A major problem that emerged was that,
although PEP had tried to be clear what the project was about, at the end of
the two years of the project, it was clear that different perspectives and
expectations existed. Tensions arose about the role of each of the players and
the limitations that existed for them to do what they thought they should be
doing. This was uncomfortable but not at all unusual in partnership
arrangements.
The key question for people in the community in Burnley was what were
they being asked to participate in, and what benefits could they hope to see?
They felt they were being expected to represent the community in all the
30 The writer was appointed as the external, independent evaluator.

128
working groups that sprang up as a result of the initial identification of local

issues and they could not manage it. There was some resentment that too
much was being expected of them, with too few results. (Interestingly enough,
going back six months later for a feedback session, the atmosphere was a lot
more positive, demonstrating perhaps just how long it takes before any
results of co-ordinated action become visible on the ground.)
In Coventry, a city with a rather weak tradition of community
involvement, the question for the service providers, and in particular for the
community development worker, was where to start. The decision was taken
to focus the efforts, both geographically, to the most deprived parts of the
rather large area, and socially, in relation to local needs. Support was given to
existing efforts to get people out of their houses (community safety issues
were a high priority and many people were afraid to go out), and for small
groups to become engaged with day to day services in a very practical way,
monitoring grounds maintenance and other environmental contracts and
beginning to make suggestions for change. At the same time, a major
consultation exercise was developed to identify local priorities to be built into
the second area plan, which would in turn be fed into and inform the citywide service planning process. Work to develop consultation and
participation was thus taking place on a variety of levels, based on the
philosophy of starting where the community was and building up from there.
It was particularly important, local officers felt, not to try to impose external
models of involvement which would not fit the local circumstances.
The research identified a set of critical success factors to make a coordinated, community based service planning process work. These were:
(a) clarity of purpose and expectations among all partners;
(b) explicit agreement about respective roles and relationships;
(c) building in community development work;
(d) a specially appointed co-ordinator;
(e) mandate and support from above;
(f) links with core/corporate policy;
(g) mechanisms for implementation;
(h) working methods: problem-solving and action-planning;
(i) developing capacity in both workers and community;
(j) developing trust, clarifying accountability;
(k) monitoring and evaluation;
(l) an area focus;
(m) giving it time.
129
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
31 The Walsall Partnership, SRB Challenge Fund Bid 1995, section 3, p 5.

130
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
(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).
LESSONS, ISSUES AND CONCLUSIONS

Participation in local government links with many of the issues currently
being tackled by many of the organisations serving the public, in particular
the issues of service quality, empowerment and citizenship and representative
democracy. In local government, participation is possibly less about choice
than voice. It is about developing mechanisms and approaches that
encourage voices to be sounded, and ensure that those voices will be heard
and receive a response. Implicitly, there is an acknowledgment that rights of
some kind are involved, but whether councillors are beginning to feel a moral
obligation to consult and to encourage participation is more doubtful. It seems
more likely that the initiatives which have been taken have been a pragmatic
response to the unpopularity and declining legitimacy of local government, a
way of engaging local people in a way that develops some trust and
credibility in the processes and outputs of government, especially local
government.
Clearly, participation is a process that needs to involve people in a wide
range of organisations involved in service provision and regeneration at the
local level. What local government can do and does is to provide some
kind of leadership or example of how this might be done. In all three of the
case studies, nothing could be done without the co-operation of other
agencies, but it was equally clear that the initiative to involve local people had
not come from them. It was local government that was giving the lead.
Possibly the most important finding from all three case studies was the
need for leadership, through committed professionals, through specially
appointed co-ordinators, and through the political and officer formal leaders.
The reason for this is the long term nature (and hard work) of participation,
where encouragement, support and role models (particularly of success) are
desperately needed.
The process of participation in local government is beset with a series of
tensions and dilemmas, none of them easy to resolve. They come under four
headings:
(1) underlying philosophy;
(2) objectives, outputs, processes;
(3) participants, stakeholders, levels of control;
(4) the focus of participation.
132
First, the philosophical issues of what consultation is about and whether it is

a credible, trustworthy process? The relevant juxtaposed views are illustrated
in the following table.
Table 3: The philosophies of participation
A paper exercise
Values and action in practice
Sponsored participation structures

(initiated by the council)
Unsponsored/spontaneous participation
(initiated by local people and
recognised/supported by the council)
Control of the agenda by the council
Control of the agenda by, for and with

local people
Consumerist responding to
procedural rights
Citizen-orientated responding to civil

and social rights
Imposed that is, participation is required by

legislation
Voluntary that is, participation takes place

in accordance with council values
The second set of problems turns on the question of what is intended to be

achieved the outputs and outcomes. As our research has shown, however
explicit the originators have tried to be about why they are fostering and
supporting public participation, not everyone involved will know, understand
or agree with them. Also, of course, objectives change over time, as it becomes
clearer what can and cannot be achieved and as local people gain in selfconfidence and organisations become more responsive. The agenda is a
dynamic one, which could explain some of the tensions generally to be found
in practice.
Table 4: Participation objectives
Legitimating local government
Empowering local people
Listening
Acting
Giving voice
Creating choice
Creating structures
Removing barriers
Community development
Organisational development
Pilot project (add-on)
Way of life (cultural change)
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
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
Majorities (shout loudest)

groups
Minorities (under-represented and excluded
Councillor-led
Officer-led
Single method
Multiple methods
Clarity/honesty about the intended degree of

public involvement and control
Confusion/dishonesty about what can be (jointly)

decided and what is merely up for discussion
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
Individual influence and control
Operational level
Strategic level
Corporate focus
Area, community focus
Whether any of these problems could be resolved through some kind of

constitutional or legal requirement to consult and/or to develop mechanisms
for participation seems rather doubtful. Rigidity might be imposed when, as
134
should be clear from the preceding analysis, flexibility is the prime

requirement. Central government encouragement of local involvement in
services through the Best Value and Community Planning agendas are only
now (1999) making their way into practice, while the experience of enforced
participation in regeneration, community care or planning matters shows that
whether it will be tokenistic or real depends on local commitment and
experience. This is not affected by legislation, except in the games people play
to get round it. It is values and attitudes that count.
Local government has shown a remarkable aptitude in recent years for
doing things its own way, even while being subjected to ever increasing
constraints. The dangers expressed at the beginning of this paper that
consultation and participation could simply be tokenistic, paper exercises, are
still with us. Meanwhile, the innovative strain in local government also
continues to exist, even where fears of litigation or central government
intervention are bringing pressures to standardise and avoid risk:
Local government should be promoted because of its capacity to undertake the
political tasks of regulating competition, making choices and integrating
human activity to cope with unexpected change and to achieve common
purposes Good local governance should display the values of openness,
deliberation and the capacity to act.32
If local government is to continue to display these values in its changing role,

it will need to shift and adapt and, above all, understand and work with local
people. Beyond that, it has the task of promoting the social and economic
well being of local communities. Taking a lead in developing modes of
participation, and ensuring that latent participation is not hindered by
unnecessary barriers, is now a fundamental role of local government.
32 Stoker, The Role and Purpose of Local Government.

135
CHAPTER 7
CONSTITUTIONALISM, DEMOCRACY AND

PARTICIPATION IN THE EUROPEAN UNION
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.
EUROPE AND THE DEMOCRATIC CRISIS

There can be little doubt that the idea of a European Community or Union is
experiencing something of a crisis. Commentators who are more sceptical
about the entire European project suggest that such a crisis is inevitable, given
the intellectual deficiencies of the idea itself. Jacques Derrida has famously
suggested that there cannot be a European union, because the whole idea of
Europe is one of difference and contestation.2 Phillip Allott has recently
suggested that the construction of the union has been undertaken without
the participation of its citizens. The essence of modern European political
thought, he suggests, is fashioned around the Hegelian premise of an evolving
self-consciousness, a consciousness which must be enjoyed by all members
of the polity. If it continues to exclude the citizen from the process of
constitutional and political construction, the Community deserves to fail, and
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
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
Allott, The crisis of European constitutionalism: reflections on the revolution in

Europe, pp 43990.
Therborn, European Modernity and Beyond: The Trajectory of European Societies 19452000,
p 249.
In the aftermath of the Maastricht Treaty on European Union, Eurobarometer surveys
revealed that less than 50% of Europeans actually thought that they benefited from
membership of the Union. Breakwill, Identity processes and social change, pp 1820.
Slater, Political elites, popular indifference and community building, p 69.
Weiler, Problems of legitimacy in post-1992 Europe, pp 41126.
Weiler, The reformation of European constitutionalism, pp 97131.
Weiler, The European Union belongs to its citizens: three immodest proposals,
pp 15056.
138
Constitutionalism, Democracy and Participation in the European Union
Weilers is, however, something of a lone voice. Such an approach is rare

amongst European legal commentators in general, amongst whom there is a
ready assumption that, however deep the problem, as a constitutional
problem it must be addressed in terms of liberal constitutional legalism. It is
the purpose of this article to suggest that the related questions of democracy
and legitimacy in Europe will require far more radical solutions if the idea of a
European Community or Union is, indeed, to be reinvigorated. It is the very
ease with which the Communitys senior institutions, the Council and the
Commission, have been able to display a contemptuous disregard for the
demands of democracy which suggest the limitations of any form of orthodox,
liberal, constitutional democracy. As a number of commentators have
increasingly noted, in the absence of institutionalised forms of participatory
democracy, the peoples of Europe, aside from displaying a reciprocal
contempt for the Community itself, have taken more and more to forms of
popular protest and interest group politics.10
There has long been talk of a democratic deficit in the European
Community. The original Treaty of Rome never envisaged a democratic
Community. But, there again, it never envisaged a Community which enjoyed
the political power which it does today. Monnet designed a form of
administrative governance, for which democracy could only be an
undesirable distraction. In the first two decades following 1958, the
Parliament barely functioned at all, and so the lack of democratic
empowerment seemed to matter less. The Council comprised the appropriate
ministers of each Member State. It still does. The Commission was populated
by various political nominees of Member State governments. Again, it still is.
Whilst the Community remained firmly intergovernmental, the lack of
democracy mattered less. But, as the supranational process of integration has
evolved, primarily in the jurisprudential form of integration through law, the
insufficiency of the original institutional framework has become ever more
apparent.11 In 1982, the President of the Parliament, Peter Dankert, suggested
that the weakness of the Parliament rendered the entire Community little
more than a feeble cardiac patient, adding perceptively, that the disillusion
of the peoples of Europe could be directly traced to the blatant lack of
democratic process. So deep was the problem, he concluded, that confidence
in democracy as an institution was itself being rapidly eroded throughout
Europe.12 The draft of the Single European Act advised of the need to locate
greater legislative powers in the Parliament, but the Council steadfastly
refused to agree.
A decade later, Shirley Williams bemoaned the lack of progress in dealing
with the deficit. It was, she suggested, the most urgent problem in the
10 Kitschelt, A silent revolution in Europe?.
11 Ward, A Critical Introduction to European Law, pp 1819.
12 Dankert, The European Community: past, present and future, pp 89.
139
Community. Without a genuine democratic impulse, the Community can

never hope to establish a coherent political identity, or attract the affinity of its
peoples.13 Juliet Lodge likewise grounds the wider crisis in governance in
Europe in institutional inadequacies. The 1990s, she declared in 1993, would
be the decade when Europe would finally have to face up to the demands for
constitutional renewal. 14 Yet, despite this urgency, the handling of the
problem of democratic legitimacy in the Maastricht Treaty was a huge
disappointment. In one of the most strident critiques, Deirdre Curtin
denounced the entire Treaty, and its institutional provisions in particular, for
their failure to address the burning questions of democratic legitimacy. The
Treaty, she suggested, threatened to lead to constitutional chaos. At the root
of the problem was the inability of both the European and the national
Parliaments to counter this threat effectively.15 The most obvious is the
continuing inadequacy of the European Parliament. It is the one institution
which pays lip service to the idea of representative democracy at a
Community level. Yet it is the one institution which still cannot properly draft
or initiate legislation. It remains, according to Philip Raworth, an
idiosyncratic body incorporating a European identity that is still artificial.16
The continuing problem of the Parliaments democratic inadequacies is
enhanced by the fact that those institutions which enjoy real legislative and
executive authority, most obviously the Council and Commission, remain
wholly undemocratic in constitution. The situation has not changed, and
neither, it can be reasonably surmised, will it; at least not in the near future.
The recent draft Treaty of Amsterdam appears to offer little hope for
reform. As Grainne de Brca perceptively observed, although the run up to
the Amsterdam Inter-Governmental Conference (IGC) suggested an
awareness of the need to address fundamental question of democratic
legitimacy, it was all too clear that the pressing concern of all participants was
the need to preserve individual political careers and perceived national
interests. As she concluded, an exercise primarily in window dressing
following a negotiation process which is closed and remote, with public
involvement and information largely confined to a few public relations
exercises, will only serve to further reinforce the erosion of legitimacy.17 The
IGC and the draft Treaty have emphasised the acuity of this prophesy. The
rhetoric of institutional reform has been shamefully abandoned. In its place,
we find fractional amendments to existing Treaty provisions, together with a
series of essentially vacuous new provisions relating to the desirability of
13
14
15
16
Williams, Sovereignty and accountability in the European Community.

Lodge, Towards a political union?, pp 38385.
Curtin, The constitutional structure of the union: a Europe of bits and pieces, p 67.
Raworth, A timid step forwards: Maastricht and the democratisation of the European
Community, pp 2223.
17 de Brca, The quest for legitimacy in the European Union, pp 37476.
140
greater transparency, and the limited extension of co-decision powers to such

marginal concerns as customs co-operation and veterinary policies. If
anything, the delaying powers of the Parliament have been reduced in order
to better expedite policies necessary for the continuing establishment of the
common market, whilst the co-decision procedure itself has become ever less
transparent with each passing amendment. There is certainly no question of
addressing the wider pervasive problems of democratic deficit.18
SUBSIDIARITY, CITIZENSHIP AND DECENTRALISATION

In the final two parts of this article, I will address the possibilities of an
alternative form of participatory democracy in the Union. But before I do, it is
important to consider two particular democratic reforms, both of which have
been incorporated in the constitutional framework of the Treaty and are often
discussed, even triumphed, in European Union discourse. The first reform is
citizenship. Article 8 of the Maastricht Treaty established that every citizen of
a Member State is a citizen of Europe. The result of this is a crucial dissonance
between alternative political and legal conceptions of citizenship in Europe.
Article 8 describes a purely political citizenship. It carries no legally
enforceable rights, outside of those enjoyed at a Member State level.
Citizenship of the Union is predicated upon citizenship of a Member State.
Thus, a guest worker in Germany who does not enjoy national citizenship is
also denied European citizenship. Of course, enacted under the Union, and
not the Community pillar, there are no justiciable rights according to the
Article anyway. But even if the practical legal effects matter less, Art 8
citizenship does suggest that the Union remains subservient to the demands
of Member States when it comes to actually governing individuals, and
commanding their loyalties. In contrast to the political conception of
citizenship, the Court of Justice has constructed a legal citizenship in terms of
certain rights enjoyed by individuals against their nation states and
legitimated by the Community. The legal citizen is the rational economic
actor. Necessarily, this excludes the unemployed, and a disproportionate
number of poor, female and ethnic minority residents of the Community who
do not fulfil this particular norm of citizenship. The unemployed is not a legal
citizen, and enjoys few legal rights. Yet paradoxically, the same German guest
worker denied political citizenship of the Union, and even legal rights within
Germany, may, as a rational and employed economic actor, enjoy certain legal
rights in the Community.19
18 Draft Treaty of Amsterdam, ch 15.

19 For criticism of citizenship in the Union, see de Lange, Paradoxes of European
citizenship, pp 97112; and OLeary, The relationship between Community citizenship
and the protection of fundamental rights in Community law, pp 54041.
141
The second reform is subsidiarity. Subsidiarity was designed to effect

Altiero Spinellis idea of a federalism without federation. However, its
articulation in the Treaty has proved to be infamously unclear. Indeed, it has
been suggested that the concept has to remain ambiguous so as to
accommodate the individual interpretations of each Member State. Lord
Mackenzie Stuart has famously referred to it as a prophylactic designed to
make the necessary loss of sovereignty a little more palatable.20 Whilst Art A
seems to present subsidiarity as a tool for enhancing the federal intent of the
Community, Art 3B suggests a more intergovernmental approach. Under Art
3B, the Community can take action only if the objectives of the proposed
action cannot be sufficiently achieved by Member States. Only in such
circumstances, and if by reason of its scale or effects it can be better
achieved, does competence pass to the Community. Crucially, scale or
effects was left undefined. Some thought that Art 3B suggested automatic
decentralisation to the Member States. Others thought that the decision as to
competence still rested with Community institutions. The Court of Justice,
however, has declined to rule on the matter, deciding that subsidiarity, being
introduced in the Union part of the Treaty and not the Community part,21 is
not obviously justiciable. This is unhelpful though perhaps wise. Once again,
the draft of the Amsterdam Treaty does little to clarify the issue, merely
repeating the scale and effects criterion and emphasising that subsidiarity is
a dynamic principle which must be applied in light of the general principles
of the Treaty, whatever they are. At the same time, the Declaration relating to
the Protocol on the application of subsidiarity certainly implies that legislative
competence rests initially with Member States, whilst the Community merely
maintains a supervisory, monitoring and implementing authority, whatever
that is supposed to mean.22
Closely related to subsidiarity is the idea of decentralisation of power,
something which is often aligned with the idea of regional devolution, the
fashioning of a Europe of the Regions. Etienne Tassin has suggested that
such regionalisation offers a community framework favourable to the
exercise of genuine citizenship. Tassins model, typically, envisages
regionalisation within a fully federative Europe. 23 Aside from the
desirability or otherwise of a federal model for Europe, such regionalism
invariably tends towards nationalistic determinants. Closer to home, for
example, there is a ready acceptance that the cause of Scottish devolution is
enhanced by the direction of European regional policy. However, the cause of
20 Lord Mackenzie Stuart, Subsidiarity: a busted flush?, pp 1924.

21 For a general discussion of the continuing problems surrounding subsidiarity, see
Harmsen, A European Union of variable geometry: problems and perspectives,
pp 11418.
23 Tassin, Europe: a political community?, pp 18485.
142
devolution is quite separate from that of decentralisation. The devolution of

power from Westminster to Edinburgh may enhance the sales of shortbread
and tartan skirts, but it will make little real difference, at least in terms of
actual democratic empowerment, to the political lives of ordinary Scotsmen or
women. Devolution is bred of nationalism, and a craving for nostalgic
mythologies of belonging. It is not the same as decentralisation.24 As Julia
Kristeva has suggested, such nationalist cravings are a peculiarly European
obsession. If anything betrays the determination of Europe to promote the
interests of its Nation States over that of its citizens, it is the conscious
encouragement of these mythologies of essential nationalism. Nationalism is
always an excuse for exclusion, and the accretion of power within certain
political interests. It is, Kristeva concludes, the antithesis of democracy.25
Habermas has similarly suggested that the challenge of nationalism is a
challenge directed at the very heart of any idea of European community.26
Most recently, Joseph Weiler has advised against the Community becoming a
vehicle for encouraging the inevitably destructive potential of nationalism.
Europe must not be founded on imaginary histories of shared affinities, and
the most imaginary of all is the spurious belief that nationalism actually binds
people together rather than drives them apart. Nationalism must be resisted at
all levels, no matter what excuse is made for it.27 Devolution, then, is no
substitute for decentralisation of power, still less, radical participatory
democracy.
IDEAS OF COMMUNITY AND PARTICIPATION

Michael Sandel has recently suggested that American public life is rife with
discontent.28 It is a statement which could equally describe the public life of
the European Union. Indeed, Sandel suggests precisely that, citing Czech
President Vaclav Havels observation that Europe today lacks an ethos, and
must look to cultivate the values from which the spirit and ethos of European
integration might grow. The European Union, according to Sandel,
epitomises a polity built for businessmen rather than citizens, in which
market forces, under conditions of inequality, erode those aspects of
24 For a commentary on the distinction, see Frug, Decentering decentralization,

pp 254338.
25 Kristeva, Nations Without Nationalism. For a similar critique of nationalism, see
Fitzpatrick, The Mythology of Modern Law, pp 6389, 11218.
26 Habermas, The European nation state: its achievements and its limitations. on the past
and future of sovereignty and citizenship, pp 12527.
27 Weiler, The reformation of European constitutionalism, pp 11922.
28 Sandel, Democracys Discontent: America in Search of a Public Philosophy, p 3.
143
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
Sandel, Democracys Discontent: America in Search of a Public Philosophy, pp 332, 339.

Etzioni, The Spirit of Community: Rights, Responsibilities and the Communitarian Agenda, p ix.
Ibid, Sandel, pp 117, 12527, 20305, 274.
Ohmae, The End of the Nation-State: The Rise of Regional Economics.
Galbraith, The Good Society.
144
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
Fukuyama, Trust, pp 298303, 31113, 31820, 35662.

Weiler, The reformation of European constitutionalism, p 120.
MacIntyre, After Virtue: A Study in Moral Theory.
Sandel, Democracys Discontent: America in Search of a Public Philosophy, p 319.
Arendt, The Human Condition.
145
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
The possibilities of a radical participatory form of democracy in modern

society have been most commonly presented by critical lawyers in the specific
area of industrial relations. Duncan Kennedy has recently suggested that the
workplace is the critical sphere of legal and political conflict in modern
society.44 In a series of articles, Karl Klare set out a neo-Marxist analysis of US
labour law. At the core of Klares analysis is the premise that law is a social
and political instrument, one which has historically oppressed the labour
force, but which could just as easily facilitate its liberation and
empowerment.45 In the US context, labour law has been systematically
fashioned to serve the interests of management. The primary means by which
the managements interest has been secured is through the denial of workers
rights to participation. Most immediately, US courts have consistently
restricted the possibility of opening up public spaces for management-worker
dialogue. The experience of US labour law reveals that legislation permitting,
but not requiring, dialogue and agreement, the kind of legislation which, as
we shall see, predominates in EC law, merely resigns any hope of genuine
participatory governance in the industrial sphere to rhetorical fantasy.
Echoing Foucaults analysis of micro-technics of power, Klare suggests that
limited participation, if determined at all times by the degree of concession
granted by management interests, merely serves to intensify the democratic
deficit suffered by the labour interest. 46 A sense of participation can be
engendered which merely disguises the lack of real democratic governance.
Only a radical democratic politics, one which denies the specious publicprivate distinction which underpins liberal ideology, by insisting that all legal
spheres are to some degree public, can redress the inequality of democratic
participation in the workplace. The workplace is a thoroughly public sphere,
and a radical politics demands that such spheres are thoroughly
democratised.47
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
he founds his thesis on Arendts sense of community and participation in

community.48 In Between Facts and Norms, Habermas has redefined democracy
precisely so as to address the question of constitutional legitimacy. At the root
of the present crises which beset western political thought is the question of
identity. Modernity, he suggests, is obsessed with identity, the subjectivity of
the self as co-determinative of and with the other. The world is fragmenting,
politically, socially and intellectually. The ethic of competition is pervasive,
whilst that of sympathy or respect is correspondingly diminished.49 To
redress this imbalance, Habermas seeks to flesh out the political implications
of his theory of communicative action as a constituent of community
consciousness. Echoing Hegel to some degree, he suggests that such a
consciousness is created, not discovered, and can, thus, be determined as a
form of communicative solidarity. Contemporary political theory is precisely
located between facticity and normativity, between arrant contingency and
totalising foundationalism. Liberal legalism has deliberately restricted the
capacity of the individual to participate in government, what Habermas terms
the common practice of associated citizens.50
The essential issue is to facilitate political legitimacy in a world of
pluralism through radical democratic institutions. Legitimacy is not located in
substantive morality but in constitutional institutions. The concentration on
institutional democracy distinguishes Habermass theory from those of the
more mainstream communitarians such as Sandel or MacIntyre.
Concentration on institutions replaces the communitarian concern with
families and moral substance, an approach which has attracted much criticism
from liberal commentators such as Ronald Dworkin. Habermas does not
intend to shape the mind or ethics of the individual. Rather, he intends to
facilitate the open democratic engagement of open minds. Ultimately,
securing political legitimacy is a legal and constitutional question, the critical
interpenetration of the discourse principle and the legal form. A constitution
properly legitimates those rules and laws which refer reflexively to the
function of social integration. In this sense, the structure of law is
underpinned by a principle of reciprocity, which modernism translates into a
principle of democracy, and which is determined in turn by the facility of
institutionalised communicative action. The key to legitimacy, then, in the
modern world, lies with democratic institutions and procedures.51 The
practice of communicative action is engaged in the spontaneous sources of
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
autonomous public spheres. Echoing the communitarian thesis to some

degree, Habermas emphasises the politics of multiple institutions which
compose our particular lifeworlds, from family and gender politics, and the
workplace, through various civic associations, and on to representative
democratic institutions. Democratic politics becomes all-encompassing: In the
vertigo of this freedom, there is no longer any fixed point outside that of
democratic procedure itself. The success of a deliberative politics depends
on the institutionalisation of the corresponding procedures and conditions of
communication, as well as on the interplay of institutionalised deliberative
processes with informally developed public opinions. In terms of
constitutions, this requires a dynamic understanding of law and politics as a
forever incomplete exercise, rendered contingent by the irreducible
contingency of the political community. The modern individual, Habermas
concludes, identifies, not with a comprehensive moral theory, but with
democratic procedures.52
Habermas has applied his theories of radical democratic politics to the
particular problem of Europe. Like, Sandel, Habermas sees the melancholic
mood which afflicts Europe as being reflective of a global lack of
confidence.53 In an increasingly competitive, fragmenting and anxiety-ridden
world, Europe is merely the most competitive, most fragmenting and most
anxious of all. On one level, the most immediate need is to resist the challenge
of capital. Unrestrained capitalism, according to Habermas, is a challenge to
democracy.54 At a deeper level, the fate and failure of Europe is symptomatic
of that which afflicts modernism generally. Contemporary Europe graphically
describes a world of alienated, disorientated consumers devoid of any
remembrance of community and social solidarity, distanced from any sense of
political participation. Any ambition to govern a community is deflected by a
desire to satiate self-interest. The greater the need to engineer market
conditions, the greater the need to regulate, and the greater the corresponding
democratic deficit. The most disturbing characteristic of contemporary
Europe is the lack of constitutional controls of administrative activity.55
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
Bureaucracy has replaced the facility of participation and, thus, community

identity. Instead, there is a destructive determination to fragment into
increasingly competitive ethnic and national groupings, which can only gnaw
away at the very idea of a European community. It is not surprising
therefore, that Europes citizens do not identify with the Community, or at
least not primarily. In order to address the crisis of identity in contemporary
Europe, there will be a need to shape a shared political culture.
Moreover, such an idea of Europe, a Europe of solidarity, determined by
an ethic of multiple political affinities and participatory democracy, depends,
in the final analysis, upon a reconstitution of its political institutions. It is a
question of democracy. The new European may, indeed, want to be
prosperous, but he or she does not want to be only prosperous. The new
European also wants to determine him or herself in a multitude of ways,
politically and socially, as well as economically. If ever a polity demanded the
facility of mechanisms of democratic participation, it is the European Union.
The new Europe suggests the potential demise of the Nation State, and with it
traditional theories of liberal constitutionalism, but fails to embrace the
necessary reconstruction of democracy which such a demise demands. It is
not a free market that Europe needs, but relief for an exhausted and
disintegrating sense of social solidarity. Rather than providing an empty
political citizenship, the new Europe must reinvent a democratic community
citizenship defined not by the Nation States but by facilities for participatory
governance. Only such a radical democratic polity will be able to facilitate the
necessary solidarity between strangers which the modern global world, and
contemporary Europe, requires.56
THE RHETORIC OF SOLIDARITY IN THE

EUROPEAN COMMUNITY
To what extent does the European Union offer the potential for a
Habermasian, or, indeed, any other, form of radical democratic politics? At
first glance the possibilities might seem to be encouraging. The rhetoric of
solidarity certainly enjoys a prominence in the Treaty itself. Article 2 declares
that the Community shall have as its task, by establishing a common market
the raising of the standard of living and quality of life, and economic and
social cohesion and solidarity among Member States. If Art 2 is indeed the
constitutional mission statement of the Community, then it would seem that
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
the idea of solidarity is central to the future development of the European

polity. In turn, it might be reasonable to surmise that the shape of democratic
politics in Europe will be more than that described by liberal
constitutionalism. In the run up to the Maastricht Treaty, Helen Wallace noted
that there was a general consensus that liberal constitutionalism could no
longer address the shortcomings of the democratic deficit. An elite-driven
process of legal integration seemed to be no longer an adequate basis for EC
governance, whilst the gap between governed and governors within and
between countries can no longer be addressed by merely technical and
legalistic devices.57 Giving social cohesion and solidarity a real democratic
meaning is an obvious approach to bridging this gap. However, the idea of
social cohesion and solidarity has enjoyed a rather variable history in the
European Community, always compromised by the overriding concern that
the Community should continue to make money. During the last couple of
decades, in particular, there has been much anxiety about the need to invest
Europe with a social face. Jacques Delors placed the satisfaction of this need
at the heart of Commission policy. The ambition of the new market, he
declared in 1990, extends beyond the single market to solidarity through
economic and social cohesion. Without a vision of social democracy, the
Community will be a hollow creation, devoid of vitality and political will.58
Back in 1974, the Community had supported the idea of a Social Action
Programme dedicated to full employment, an improvement in living and
working conditions and social dialogue in the workplace. The idea was
resurrected at the Fontainebleau summit in 1984, which stressed the need for a
balanced Europe, and promoted a policy of economic and social cohesion as
a democratic imperative. However, the legal and constitutional effects of all
this rhetoric and anxiety have been notoriously limited. We have already
noted the inadequacies of the constitutional concept of citizenship in Art 8. It
adds nothing to a social face. It should be admitted that the Single European
Act introduced, in Art 130, the desirability for social progress to complement
the completion of the single market. However, it has always been the case that
the argument for social reform has only been validated by evidence that such
reforms will enhance the competitiveness of the common market.
Accordingly, the Community Charter for the Social Rights of Workers was
accepted by the Member States only in 1989, when Delors reluctantly agreed
that it should have no legal force but rather be a solemn declaration.
The result of the Communitys inability to establish a coherent social
policy was the Protocol on Social Policy to which is annexed the Agreement in
Social Policy, and which in turn is annexed to the Maastricht Treaty. The
refusal of the UK to subscribe to the Agreement, and the resultant Protocol,
57 Wallace, European governance in turbulent times, p 96.

58 Quoted in Lodge, Social Europe, p 135.
151
asked considerable questions of the acquis communautaire.59 Moreover, whilst

perhaps being a constitutional document (if it can be accepted that the
Agreement was part of the Treaty framework), the Agreement itself asked few
commitments of those Member States willing to accede to it, permitting any
ensuing legislation to be passed in the form of directives rather than
regulations. Erica Szyszczak rightly suggested that, following 1992, social
policy so long the Cinderella of the common market, has been transformed,
not into a fairy princess, but into an ugly sister.60
Furthermore, although the idea of social cohesion and solidarity enjoy a
prominence in the constitutional rhetoric of the Community, the various
institutions, including the European Court of Justice, have been less inclined
to promote the cause of participatory democracy through the development of
a coherent social law. Paul Teague has argued for a European social
constitution, emphasising the extent to which the development of a social
face must be seen as a political issue and a democratic issue. The ultimate
ambition of such a constitution must be to achieve dialogue between all
interests in the common market.61 In a more recent article, Teague and Grahl
have argued for the conscious construction of a labour market characterised
by productive decentralisation and the empowerment of all sectors of the
market, founded on a proactive Keynesian political base.62 It goes without
saying that the Draft Treaty of Amsterdam makes no gestures along these
lines. Whilst bemoaning the increasing problem of unemployment, the
pervasive rhetoric tends far more towards flexibility in the area of social
policy, and the devolution of responsibility in such areas to the Member
States.
INDUSTRIAL DEMOCRACY AND WORKER PARTICIPATION

As we have already noted, the idea that participatory democracy and
governance can find a real practical application in the sphere of industrial
relations has attracted the attention of critical legal scholars. Moreover, it
enjoys a particular resonance in contemporary British politics. The report of
the Social Justice Commission waxes long and lyrically about the need for
workers representation and involvement in the workplace as being necessary
for efficiency, democracy and regulation. The Agreement gestures towards
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
greater industrial democracy and addresses a democratic imperative. The

problem of democratic deficit, it rightly noted, is not merely felt at
Westminster or Strasbourg, but is most acute and pressing in the
workplace.63 The 1978 Industrial Democracy White Paper following the
Bullock Report had appreciated this 16 years earlier. As it famously opened, in
a democratic society, democracy does not stop at the factory gate, or the office
door. Industrial responsibility is a shared enterprise, for in a competitive
world, only the co-operative and democratic industry can hope to thrive. Of
course, where the Bullock report advocated genuine legal rights of industrial
participation and co-decision, the Social Justice Commission adopts the more
current, and necessarily weaker, alternative of consultation procedures. To a
certain extent, this kind of rhetoric enjoys an affinity with recent literature on
the idea of stakeholding. According to Sally Wheeler, stakeholding connotes
duties and responsibilities implicit in the citizenship of a democratic polity. It
is a measure of active participation in that polity. Echoing Fukuyama, she
refers to stakeholding as a mechanism for restoring trust in economic
relations. The adoption of works councils, she suggests, is a gesture towards
stakeholding. But it is only a gesture. As we shall see shortly, and as Wheeler
concludes, in the absence of genuine rights of participation as opposed to
mere consultation, it remains a largely empty one.64
It is, of course, a gesture that owes its immediate origins to the European
Community. The underlying idea of industrial partnership has gained
increasing voice in Commission rhetoric, and to a lesser degree in the
constitutional framework of the Community. The desirability of greater
workplace dialogue in the Community, as we have just seen, was articulated
in the 1974 Social Action Programme. In a 1975 Commission report, there had
been similar emphasis on the need for greater worker participation, as a
matter of both democracy and efficiency.65 However, the infamous failures of
the draft Fifth Company Law and Vredeling directives signalled the
reluctance of the Member States to commit themselves to real industrial
democracy. It was not until the Single European Act, over a decade later, that
support for the idea of management-labour dialogue was incorporated into
the Treaty framework. Article 118B encapsulated the Val Duchesse principle,
expressed as a dialogue between management and labour at European level
which could, if the two sides consider it desirable, lead to relations based on
agreement. The 1989 Community Charter again repeated the need to facilitate
the information, consultation and participation of workers. Although there
were a series of directives aimed at realising this ambition, the majority of
which addressed related issues of health and safety, commentators such as
Erica Szyszczak and Bob Hepple have continued to argue for a more coherent
63 Commission on Social Justice, Social Justice: Strategies for National Renewal, pp 20914.
64 Wheeler, Works councils: towards stakeholding?, pp 4464.
65 Bulletin of the European Communities, Supplement 8/75.
153
constitutionalisation of management-labour dialogue. The limitation of

Community involvement to a Community level failed to address the real
problems of industrial democracy, and related questions of working
conditions and so forth.66 The Communitys competence does not extend to
the sphere of industrial relations in the workplace. Article 118B and the 1989
Charter are founded on precisely the fiction familiar to critical labour lawyers,
that labour relations is consigned to the private sphere of legal relations and is
not a matter of public law or policy.
To a certain extent, it might seem that the incorporation of the Community
Charter into the Agreement addresses this fiction. However, the uncertain
legal status of the Protocol, and the weak nature of the commitments that the
Agreement demands of the Member States, tempers such a conclusion. The
voluntarism of the Val Duchesse principle remains decisive. Although the
Commission consults both management and labour interests with regard to
any putative legislation, there is no ultimate requirement for agreement. If
need be, as with the Works Council directive itself, the Commission will
simply proceed without agreement. The Court of Justice has steadfastly
refused to claim any jurisdiction to enforce agreements under Articles 2 and 4
of the Agreement. Most importantly perhaps, the annexed declaration to Art
4.2 of the Agreement expressly provides that the Member States are not
obliged to apply the agreements directly or to work out rules for their
transposition, nor any obligation to amend national legislation in force to
facilitate their implementation. Furthermore, as Paul Teague has noted, the
principle of subsidiarity, if it is, indeed, interpreted as being an instrument
designed to return power to Nation State level, will militate against any
uniform introduction of constitutionally secured industrial democracy.67 The
suspicion, articulated in the 1994 Commission White Paper, that flexible
labour strategies must vest responsibility with Nation States, seems to have
been realised in the draft Amsterdam Treaty. The proposed new Title on
Employment requires Member States to promote employment, but respects
the national particularity of policies relating to industrial co-operation.
Likewise, proposed amendments to Art 118 of the Treaty and Arts 2 and 4 of
the Agreement, whilst reiterating the Communitys desire to promote
dialogue, makes few advances. Any legal responsibilities which follow from
the process of dialogue must still be readily accepted by both management
and labour. If management refuses to make any legal commitment, then there
is no question of it being forced. Moreover, Member States are under no
obligation to facilitate or apply any such agreements even if they reached.68
Most significantly, of course, these commitments, being expressed through the
medium of directives, are immediately consigned to the private sphere. The
66 Szyszczak, 1992 and the working environment, pp 314.
67 Teague, Co-ordination or decentralization? EC social policy and industrial relations.
154
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
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
CITIZENSHIP, PARTICIPATION AND

LEGITIMACY IN THE EUROPEAN UNION
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
statements came from the Bundesverfassungsgericht (the Federal Constitutional

Court) in Germany in its judgment on the TEU delivered on 12 October 1993.
In a complex, somewhat tortuous, judgment, it defined the EU as a
Staatenverbund (an association or compound of States), and the implications
of its judgment on citizenship deserve careful attention.1 Here, they can only
be briefly and crudely put. In essence, the Court determined that there was no
European Volk (common people) nor a nation, and therefore there was no
European citizenship. As Weiler has interpreted it, the Court was basing its
judgment on the fact that:
Neither the subjective element (the sense of shared collective identity and
loyalty) nor the objective conditions which could produce these (the kind of
homogeneity of the organic national-cultural conditions on which peoplehood
depend) exist. Long term peaceful relations with thickening economic and
social intercourse should not be confused with the bonds of peoplehood and
nationality forged by language, history, ethnicity, and all the rest.2
The linkage between Volk/nationality and citizenship which, of course, has

deep roots in German history and culture, beyond the evils of Nazism is
used as the exclusive basis for democratic authority and citizenship. In
consequence, EU nationals should treat EU initiatives with great caution. The
implication is that democracy can be best perhaps even only safeguarded
via national action. Indeed, the absence of a European volk/nation would
seem to preclude a functioning democracy at the EU level in the future.
Yet, should such a rigid interpretation be acceptable to EU nationals?
There is no a priori reason why the definition of peoplehood need be the
same at both the national and the European level. If citizenship is decoupled
from volk/nationality, then it is possible to define citizenship in civic, rather
than cultural, terms and to accept a notion of multiple citizenship, as Weiler
argues. Europe need never be a common volk/nation. The EU can instead be
conceived as being based on a social contract among nationals sharing certain
values.3
States are not ends in themselves, but they are rather instruments for
individuals, alone and collectively, to realise their potential. Deeper
integration and more market openness can be accepted as requiring an
expansion of democracy and participation across the national-EU divide. The
EU states share common values of liberal democracy, they may be understood
as having come closer together to mediate the effects of market globalisation,
accepting common action in particular areas. A conception of citizenship
(involving notions of democracy and participation) that responds to
1
2
3
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
Citizenship, Participation and Legitimacy in the European Union
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
OVERCOMING A DISTORTED LEGACY

To realist scholars of international relations, the notion that citizenship can be
based on both national and European foundations is an anathema. Raymond
Aron, for example, denied that multinational citizenship of this sort was
possible.5 To him, the then European Community simply did not possess the
requisite characteristics to allow citizenship to be associated with it. Yet, the
manner in which European integration proceeded indicated that, in reality, it
was abrogating to itself, implicitly and then explicitly, some of the rudiments
of citizenship.6 Moreover, an increasing European dimension in this regard
has been encouraged by an acceptance in recent times that citizenship may
have more than one focus.
The manner in which the EU has developed has closely affected how it has
treated the notion of citizenship. By most conventional measures, the EU
pursued a distorted or skewed concept of citizenship. The core notions have
been the rights to freedom of movement and of residence, built up since the
original Treaty of Rome. These apply, of course, to only those who wish to live
and work in another EU country. These rights became linked to the objectives
of the single European market, detailed in the Single European Act. The
provisions on free movement were expanded to all individuals, not just the
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
economically active. This development, supported by the expansive

interpretations of the European Court of Justice (ECJ), provided the basis for
the citizenship notion in the Maastricht Treaty.7 Beyond this socio-economic
core, the political dimension of EU citizenship has been slow to develop and
has been without much coherence. Article 8 of the Maastricht Treaty conferred
citizenship on Member State nationals, but the political rights outlined were
relatively superficial (the right to vote and stand as a candidate in municipal
and European Parliament (EP) elections. These were the right to diplomatic
protection by the authorities of other Member States in third countries and the
right to petition the EP. More sensitive issues of Justice and Home Affairs,
such as border controls, asylum, immigration of third country nationals, drug
addiction, fraud, terrorism, and judicial co-operation, were siphoned-off to the
third pillar of Title VI of the Treaty, where decisions are made on a strictly
intergovernmental basis.
It must also be noted that the social rights enumerated in the Social
Charter of 1989, and endorsed by an annex to the Maastricht Treaty, were not
linked explicitly with citizenship in the text of the Treaty, to which there was
both national and ideological opposition. 8 Moreover, a proposal to
incorporate the European Convention on Human Rights (ECHR) into Treaty
law was rejected at Maastricht, even though that proposal was supported by
the Commission and the EP. National governments apparently feared the
consequences of extending such rights to individuals from other than EU
countries. 9 Instead, Article F (Title I) committed the EU to respect the
fundamental rights guaranteed by the ECHR, without any further
elaboration of the procedures or rights of adjudication which would give
substance to that respect. Overall, despite the claims to radical innovation, it is
difficult to contest the conclusion of Anderson et al that the Maastricht Treaty
changed very little with respect to citizenship.10
In response to some of the backlash against the Maastricht Treaty, further
Treaty revisions on citizenship were made at the Amsterdam European
Council in June 1997. In the socio-economic field, the Social Protocol of
Maastricht was integrated into the new Amsterdam Treaty and a new chapter
on employment was added. Free movement of individuals was further
enhanced, except in the UK and Ireland which retained their border controls.
Decisions on immigration, visa policy and political asylum may be made by
majority voting after five years. A zone of freedom, security and justice is to
come into force within five years of the Treatys ratification within which
policies towards organised crime and drug trafficking, corruption, asylum
and immigration and racism and xenophobia will be developed jointly.
7
8
9
10
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.
161
PATTERNS OF CIVIL SOCIETY

The significance of this distorted conception of citizenship is that it
undermines the scope and coherence for public participation in the EU
political process. In reality, the scope for participation at the EU level extends
well beyond the conception of citizenship outlined above; indeed, the latter is
a poor guide to the former. But, the EU notion of citizenship, developed
hitherto, obscures our understanding both of what exists and of the present
opportunities for, and impediments to, increased participation.
The central contention of this chapter is that, for their citizens of Member
States, EU membership paradoxically has both broadened and undermined
the scope for participation in political, economic and social affairs. To support
this argument it is necessary to distinguish between the EU as a policy actor or
entrepreneur, on the one hand, and the EU as itself a separate political system
on the other. The EU is a policy actor or animateur in those fields where it has
accumulated distinct sets of policies and common action, but the interrelationships between the EU institutions themselves form a policy process or
system which actors seek to influence. Both dimensions the EU as an actor
and the EU as a system provide opportunities and threats to public
participation.
At the systemic level, it is important at the outset to note a general
contextual limitation. At the European level there is an absence of, or at least a
pronounced weakness in, those social structures and processes that normally
constitute civil society. At the national level, modern liberal democracy is
understood to rest on such structures and processes. The aid given by the
West to assist the transitions in central and eastern Europe has been intended
to nurture the development of an indigenous civil society. A growing
literature in political science recognises the development of civil society as
being essential to both democracy and stability. The relative absence of civil
society structures at the EU level is denoted by the weakness of Europeanwide bodies representing sectional or promotional interests. Pluralistic politics
still largely operates within distinct national settings, with nationally based
groups extending their activities, often in a piecemeal fashion, at the EU level,
and typically doing so in a manner which retains their national autonomy.
European-level interest groups are, in the main, weak agglomerations of their
national associations.
Similarly, a European party system is only slowly emerging. Political party
activity at the EU level has not affected the sovereignty of the national parties
to a significant degree. The EP requires its members to sit in cross-national
party groups if members are to receive additional financial support, and a
number of European parties have been proclaimed. In November 1992, the
Party of European Socialists replaced an earlier Confederation, and was
placed alongside the European Peoples Party, the Federation of Christian
162
Democratic Parties of the EC, the Federation of European Liberal, Democrat

and Reform Parties and the European Federation of Green Parties. Other,
smaller, transnational alliances exist. Strong informal pressures are exerted
upon member parties to accept majority decision making, especially when
drawing up common manifestos for the European elections. In each grouping,
national parties have also accepted some formal limitation of their
autonomy.11 Moreover, anoraked enthusiasts can join some of these EU
parties as individual members. But, such groups essentially remain bottomup confederations. It is the national parties which have created a European
umbrella for themselves and they remain able to exit or derogate from their
EU association.
Beyond the parties and interest groups, there are few other social
structures which have a European character as opposed to sets of distinct
national forms. Amongst Europes multifarious churches, the Roman Catholic
Church stands out as having a supranational form. Yet, whilst it has long
been associated with support for European integration, via the Christian
democratic parties, it has made little direct input itself into EU politics. The
other churches are predominantly more nationally based.
The media may prove to be one sector in which change may take place. In
the past, newspaper and television companies had solely a national audience
(or single linguistic market in some cases). With the growth of satellite and
cable television, there are now more companies providing services on a
transnational basis. Euronews and Eurosport are prominent examples, with
CNN Europe and BBC World also relevant in this regard. In addition, many
of Europes major quality national newspapers have now established cooperative links between themselves, and in some cases there is cross-national
ownership. The potential exists though as yet it has barely been realised
for a distinct European media input into politics. Media coverage of EU
politics remains limited and often fails to develop a European perspective.12
New technologies and the pressures of more open national markets may yet,
though, yield a separate media structure as part of a European civil society.
So far, however, it is barely possible to speak of an EU level civil society.
The consequences of this for democracy and public participation are very
profound. The forms of accountability and participation that currently exist at
the EU level are based on a hybrid combining both intergovernmental and
supranational models. In brief, the citizen can make an indirect input via
national parliaments and governments to the Council of Ministers and the
European Council. The latter have the greatest power in the EUs institutional
framework, although it must be admitted that this has been partially and
11 Hix, The transnational party federations, p 308.

12 Sonntag and Featherstone, Looking towards the 1984 European elections: problems of
political integration.
163
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.
THE EU POLITY AND PARTICIPATION

The operation of the EU political system has a paradoxical effect. The EU
institutional framework undermines national parliamentary control,but
boosts the scope for policy influence by associations of national interest
groups and lobbies. In short, it threatens national parliamentary democracy
but provides opportunities for new forms of pluralistic politics.
The threat to national parliaments is encapsulated in the notion of there
being a democratic deficit involved in EU membership. This deficit is the
result of a combination of two phenomena: first, the transfer of powers from
the Member States to the EC; and, second, the exercise of these powers at
Community level by institutions other than the EP, even though, before the
transfer, the national parliaments held the power to legislate in the areas
concerned.14 In other words, the nature and timing of EC legislation makes it
difficult for national parliaments to exercise a right of accountability. They
become weakened vis vis their own governments and the set of EU
institutions. EU policy making provides national governments with a series of
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
political advantages, as A Moravcsik has noted.15 Governments benefit in

several ways:
(1) they are more able to take the political initiative, to introduce issues onto
the domestic agenda;
(2) they have certain institutional advantages: domestic parliaments find it
difficult to control their European policies;
(3) governments have better information on Europe, including not only
technical information but also political knowledge as to what is feasible in
EU negotiations;
(4) governments possess an ideological advantage over their domestic
opponents: by imposing an ideological, European frame on an issue,
affecting the terms of the subsequent debate. When the main EU
governments agree on a particular ideological justification for a policy, it
becomes more difficult for domestic lobbies to challenge it.
In short, Moravcsik argues that EU integration has actually made national
governments stronger, not weaker, domestically.
By contrast, national parliaments have little institutional link with either
the EP or the Commission. Members of national parliaments may, depending
on national constitutional provisions, become ministerial representatives in
the Council of Ministers. Yet, once decisions are taken in the Council (or
European Council), it becomes very difficult for national legislatures to
challenge, let alone overturn, them. EU Treaty revisions may be distinct in the
amount of attention they receive, but it must be noted that no national
parliament managed to change a single word of the Maastricht Treaty.16 The
exceptional case of Denmark involved a national referendum defeat, the
outcome of which was that the damage was ring-fenced, with additional optouts granted to the Danes. All the parliamentary attention devoted to
Maastricht in Westminster, for example, had little, if any, effect in this sense.
The terms of British adhesion to the Treaty remained unaffected. The normal
texts of EU legislation fare even worse. National parliaments have little time
or knowledge by which to seek to revise these texts, and decisions made in the
Council are practically impossible to unravel.17
15 Moravcsik, Why the European Community strengthens the State: domestic politics and
international cooperation.
16 The Dutch and German Parliaments did, however, secure some extensive new powers
in relation to the EU. In the German case, as a result of the German Constitutional Court
upholding these powers, two new Articles (Arts 23 and 45) appeared in the German
Constitution. In France, the Parliament exploited the post-Maastricht crisis in 199394 to
secure new controls over the Governments EU policy, placing it in a comparable
position to the UK Parliament. Newman, Democracy, Sovereignty and the European Union,
p 194.
17 The Amsterdam Treaty of 1997 contained a new right to information (to EU documents),
and provided that when the Council of Ministers acts in its legislative capacity, it is to
make public the results of the votes and explanations of votes. The potential effect of this
latter provision is difficult to assess as yet, before it is put into practice.
165
Though the emergence so far of European-wide interest groups is not

sufficient to be able to refer to them as constituting a distinct foundation for a
European civil society, the manner in which the EU institutions operate does
provide very substantial scope for new forms of EU-orientated pluralistic
politics. The EU Commission seeks and, indeed, actively encourages lobbying
of itself by EU level interest groups. It recognises that this development has
been instrumental in the creation of a distinct and coherent identity for the
EU, with the concomitant support for further integration that is assumed to
bring. Different structures of participation have emerged between the
Commission and outside interests. In some sectors, the Commission has taken
the lead in developing a European interest group association (for example, the
European Disability Forum in 1993); in others, it provides material support
(for example, European Forum of Child Welfare). 18 In almost all cases,
however, the manner in which the Commission engages in policy discussion
recognises the legitimacy of representations made by EU level interest groups.
Perhaps most prominently, the Commission engages in dialogue with the
European partners EU level business (Union of Industries of the European
Community (UNICE)) and trade union (European Trade Union
Confederation (ETUC)) organisations and with the farming lobby
(Confederation of Professional Agricultural Organisations (COPA)). Much of
the Commissions policy instinct and style is neo-corporatist. The Commission
has successfully sought to place itself at the centre of a system of interest
group politics in which support for the EU can be transmitted by elites to the
mass public.
Yet, whilst the new opportunities for interest group representation exist
and are actively encouraged, they remain only partially exploited by national
bodies.19 Many interest groups suffer from a lack of understanding of the
sometimes Byzantine EU policy processes. Many groups operate on very
restricted budgets which do not allow much sustained attention to EU politics.
Too many fail to recognise the salience of the EU to their work. Furthermore,
on occasions, national governments undermine interest groups access to the
arenas in which EU policies are formed. 20 As a result, the nature and
effectiveness of interest group activity at the EU level varies enormously
between different policy sectors. The importance of such linkages in the future
also remains in question, given that increased market liberalisation and other
social factors are challenging traditional corporatist styles of representation.
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.
166
EU POLICIES AND PARTICIPATION

The EUs political system is, then, characterised by the limited effectiveness of
national parliaments and interest groups within that system. Participation is
also affected, however, by the EU acting as a policy innovator, establishing
new regulatory frameworks, standards, and policy projects. The expansion of
the EUs competence inherently affects socio-economic relations at the
national level; as it is meant to. Again, however, the picture that results is full
of contrasts. The scope for public participation varies significantly between
policy sectors. In many instances, EU policy initiatives have to some degree
set higher market standards, led to stronger forms of social protection,
heightened environmental safeguards, eased access for the disadvantaged to
the labour market, promoted cultural preservation and innovation, and
facilitated new educational opportunities. Each of these aspects of EU action
can be related to a broad, socio-economic conception of citizenship rights and
community participation.
Not surprisingly, the reality in each policy sector is somewhat complex.
Two examples of this complexity will suffice here: social policy and
environmental policy. In the social policy arena, the impact of the EU has been
disparate. The Treaty of Rome (EEC Treaty 1957) offers protection for matters
such as gender equality,21 health and safety,22 and for freedom of movement
within the EU.23 The activism of the ECJ in relation to sex equality has had, for
example, a major impact on private, and indirectly public, pension schemes.24
But, the attempts of the Commission to construct a significant social
dimension (with uniform or at least minimum standards) has thus far been a
saga of high aspirations and modest results.25
The obstacles to an activist role for the Commission are formidable,
including institutional constraints at the EU level, the resistance of national
governments to loss of responsibility, and the relative weakness of social
democratic forces.26 Yet:
The process of European integration has eroded both the sovereignty (legal
authority) and the autonomy (de facto regulatory capacity) of Member States in
the realm of social policy. National welfare states remain the primary
institutions of European social policy, but they do so in the context of an
increasingly constraining multi-tiered polity.27
21
22
23
24
EEC Treaty 1957, Art 119.

Ibid, Art 118a EEC.
Ibid, Arts 30, 7; and EC Regulations 1408/71, 574/72.
Barber v Guardian Royal Exchange Case C-262/88 [1990] ECR I-1989. See Shaw, Law of the
European Union.
25 Liebfried and Pearson, Social policy, p 188.
26 Ibid, pp 18889.
27 Ibid, p 186.
167
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
Liebfried and Pearson, Social policy, p 205.

Sbragia, Environmental policy, p 241.
Ibid, p 238.
Kramer, Focus on European Environmental Law, p 53.
Ibid, Sbragia, p 245.
168
national actors involved operate in a transnational cocoon structured across

the International Monetary Fund (IMF), the Group of Eight (G8), the
Organisation for Economic Co-operation and Development (OECD), the Bank
for International Settlements (BIS), the EC Monetary Committee, and the
Council of Economic and Finance Ministers.33 National systems have differed
in their institutional arrangements, eg for central bank independence, but the
reality has been that policy has been decided by a closed elite. The terms of the
Maastricht Treaty on Economic and Monetary Union (Title VI and Protocols)
place this dramatis personae on a new stage, but the opera remains largely
impenetrable.
The EMU policy process has been designed, quite self-consciously, in a
manner which makes it very different from other EU policy sectors. Here, the
respective roles of the Commission and the EP are weaker and more limited.
In most areas, the EP is only informed or consulted. In Stage 3 of EMU, the
President of the European Central Bank (ECB) will present an annual report to
the EP, which then has the right to debate it. It is not required to approve it.
The ECB President and fellow members of the Executive (including central
bank governors) can be required to attend hearings of the relevant EP
committees. On the other hand, the ECB members can request the right to
address the committees. Such a mechanism creates a useful dialogue, but little
more. The Commission has fared worse under EMU. The traditional,
exclusive right of the Commission to initiate policy found in most other
sectors has been overturned here. EMU is both intergovernmentalist and
based on intercentral bank co-ordination. More particularly, both parliaments
(national and European) and publics are kept distant from the policy process.
Instead, EMU management in Stage 3 will be the responsibility of other
institutions. Prime amongst these will be the new ECB in Frankfurt. Its
Executive Board will have six members, each serving eight year terms of
office, appointed by the national governments. A governing council will
comprise the Executive Board members and the governors of the national
central banks. The Executive Board will give instructions to national central
banks on the monetary policy to be pursued. Neither the ECB, nor national
central banks, will be allowed to take instructions from any other EU or
national body. The central banks of participating states will already have been
made independent from their national governments before Stage 3 begins.
The primary objective of the European System of Central Banks will be to
maintain price stability. When it can be done without prejudice to this
objective, it will support EC economic policies that contribute to other EU
objectives. A new Economic and Financial Committee composed of national
and Commission officials will be set in Stage 3, and this will work alongside
33 Dyson et al, Strapped to the mast: EC central bankers between the Maastricht Treaty
and global financial markets.
169
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.
LEGITIMACY AND THE EU

The backlash against the EU in Britain, Denmark and France after the
Maastricht negotiations indicates that the comments of Bogdanor and
Woodcock still hold true. They have argued that the shortcomings of the
Community lie in the feelings of remoteness and lack of influence and
involvement on the part of many of its citizens.34 The revisions of the
Maastricht Treaty concluded in Amsterdam in June 1997 have failed to
remedy these concerns. The Amsterdam summit had the air of failure about it.
The core issue remains the lack of legitimacy enjoyed by the EU institutions.35
Both the EP and the Commission lack legitimacy. As already noted, the EP
suffers from low election turn outs and poor media coverage. Its institutional
role is complex and highly confusing. An understanding of its role is less a
social asset than are the finer points of trainspotting. Candidates seeking
election to it can promise very little, other than to use a platform to promote
34 Bogdanor and Woodcock, The European Community and sovereignty, p 492.

35 Featherstone, Jean Monnet and the democratic deficit in the European Union.
170
favoured interests. Almost nothing in the EU changes as a result of an EP

election. The EP has accrued more powers and much more policy influence at
the EU level, but only narrow sections of the European public appear to have
noticed.
The problems of the EP go to the heart of the legitimacy issue. The
European integration process was originally designed in a manner which
gave little priority to parliamentary accountability or scrutiny.36 Each of the
Member States that have joined the process have had a constitutional
structure based on cabinet-parliamentary relations. Yet, this was ignored
when creating European unity in the 1950s. Jean Monnets philosophy
underpinning the European Coal and Steel Community (ECSC) emphasised
the role of a new technocratic body, the High Authority. Later, under the
EEC, a Commission was created which subsequently subsumed the High
Authority. Thus, in place of the framework familiar to all at the national level
of parliamentary democracy came a technocratic elitism.37
Much of the essence of that original design has survived until recent
times. As Pinder has pointed out: the institutions of the European
Community have remained remarkably similar to those designed between
May and July 1950.38
In other words, the legitimacy problem can be traced to the creation and
role of the Commission. Much of the philosophy that lay behind its creation
was and is alien to many Member States, especially the northern Europeans. It
was a philosophy that insisted not only on supranationalism a key federal
characteristic but, also, on the privileges and benefits of technocracy.
Monnet sought to overcome the constraints of intergovernmentalism which
had undermined earlier attempts at building European unity (for example, the
League of Nations, the Council of Europe). He did so, however, by adopting
the technocratic approach he himself had instigated at home in France as the
first Commissaire general du Plan de Modernization et dEquipement in 1946. This
1946 scheme was consistent with the evolving system of planning in France.
After its successful launch, technocrats held a special status in French
culture.39 The 1946 scheme bequeathed to the emerging EC a neo-corporatist
policy style in which the Commission would seek to engage networks of
outsider producer and interest groups in the way already noted. More
particularly, Monnets approach seemed to see parliamentary involvement as
meddlesome or unnecessary. In the ECSC negotiations, Monnet did not
originally propose a parliamentary assembly. He also sought to defeat the
creation of what became the Council of Ministers.
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.
171
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.
CONCLUSION: THE PARTICIPATION

PROBLEM IN THE UK AND THE EU
It is clear that a problem of citizenship and of participation exists at the EU
level in all of its Member States. The problem is expressed in the weakness of
democratic accountability at the EU level, the confusion of institutional forms
linking Member States with the EU, and the idee fixe of some that citizenship
and legitimacy are inexorably and exclusively tied to the Nation State. The
resolution of such problems, thus, requires action at the EU level.
Nevertheless, the British case is one of the most extreme, given the absence
of a UK written constitution, the British attachment to parliamentary
sovereignty at Westminster, and the Eurosceptic bombast of Thatcher and,
more latterly, Major. Resolving the problem of how British nationals can
exercise democratic accountability, and participate to the fullest extent in the
political, social and economic decision making processes which affect their
lives, requires that more emphasis is given to the domestic impact of the EU. It
also presumes that a more open attitude is shown to the notions of citizenship
and of legitimacy. They need to be conceived of in a manner which at least
takes account of the increasing competences and activity at the EU level, if not
the cultural affinities which extend beyond this island. The concept of
172
subsidiarity is one which assumes an upward, as well as a downward, shift of

political responsibility and action.
The costs attached to the status quo should not be underestimated. A
disjunction currently exists in which citizenship, accountability and legitimacy
are sculptured around the Nation State by those with the greatest self-interest
in so doing, whilst more and more power and responsibility is exercised at the
EU level where accountability and participation are lacking. The benefit is to
national ministers and officials, privileged by parliamentary weakness at
home and unchecked power at the EU level. The romanticism of Westminster
sovereignty serves their political ends, but is contradicted by the daily realities
of the EU. The cost is to the British citizen who finds accountability and
participation blocked off by lack of information and by the peddling of archaic
Westminster myths.
The new British Government has announced a set of reforms which have
the potential to breakdown some of these accumulated barriers. The
decentralisation of power at home to Scotland, Wales and London, the new
attitude to proportional representation, and even the all too modest attempts
to reform the House of Lords presage a willingness to break out of the
shibboleths of government monopoly power. In relation to the EU, the Blair
government has trumpeted its more positive approach. Yet, in reality it has
moved little beyond traditional British gradualism and centralism. It is
notable that it has sought little reform of the EUs institutions, beyond a little
more majority voting and a modest enhancement of the EP. Nor has the Blair
government begun to address the institutional linkages between domestic
bodies and the EU. Its instinct is to preserve and defend British citizenship,
rather than to adapt it to new EU conditions. In Europe, Whitehall still
knows best.
Caution may come, in part, from a fear of a hostile public reaction to EU
reform. Majors legacy is one of anti-EU populism, pandering to popular fears
rather than informing and educating about new realities. Good government
entails leadership, however, to shift and overcome popular misconceptions.
Failure to do so sustains the limitations on accountability and participation
that are so often decried at home. True reform can no longer be inwardlooking, but must also embrace Britains relations with the EU.
Definitions of citizenship give rise to different forms of participation.
Moreover, forms of participation vary according to the spread of competences
and the range of philosophies attached to different levels of governance.
Different levels of governance may exhibit varying types of policy style,
possess distinct policy frames, and pursue separate agendas. In the social
policy sphere, for example, it is clear that currently only Nation States seek to
sustain the Welfare State. EU initiatives in this area have a different character,
as already noted. Moreover, other international regimes acting in this sector
(for example, Council of Europe, International Labour Organisation (ILO))
173
emphasise a more civically-oriented agenda, regulating for equal

opportunities on the basis of some shared set of values. Thus, the way in
which citizens may participate in the emerging world of multi-level
governance has to take account of what values and competences have been
accumulated at the different levels.
Participation beyond the domestic sphere need not repeat the institutional
forms attached to the Nation State. The latter grew in importance on the basis
of distinct historical conditions, many of which are now increasingly under
challenge. Participatory forms now have to be adapted to a new global (not
merely European) environment which threatens State autonomy, and many of
its accumulated practices. Socio-economic interests, and perhaps identities, are
likely to be increasingly transformed by these new extra-territorial pressures.
Many such pressures have arisen in an uncontrolled manner, by default. The
new challenge is to manage them by careful design. A democratic deficit has
not been pre-determined.
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.
175
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
Mulgan, On the brink of a real society.

Kuenstler (ed), Community Organisation in Great Britain.
Willmott, Community Initiatives: Patterns and Prospects.
Higgins, The Poverty Business in Britain and America.
Knight and Stokes, The Deficit in Civil Society in the UK.
176
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
11 Tusa, The price of separation from the good society.

12 Robson et al, Assessing the Impact of Urban Policy.
177
and the voluntary sector to develop sensitive programmes that make a

difference to communities. Time will tell.
This brings us to the fifth factor. There is no good blueprint about how to
create communities. Michael Young has recently noted that there is no up to
date body of theory or practice which politicians can draw on to help them in
social and community planning.13 Earlier examples of community planning
have ended more or less in disaster whether we consider urban renewal or
new towns. Later empirical work has reached similar conclusions. Keith Yates
has identified the seven key outcomes of successful community development
as: the development of stronger accountable local communities; increased
control over local resources; mounting successful campaigns; achieving
greater equality for disadvantaged groups; launching projects and events on
the ground; establishing a more equitable partnership between local
authorities and communities, and developing a sense of community. Yates
concluded:
In reality, despite considerable rhetoric, and a lesser translation into resources,
the results of community development in Scotland since 1975 have not been
totally successful in delivering many of these outcomes.14
The Association of Metropolitan Authorities publication Local Authorities

and Community Development: reached similar conclusions: after 15 years
and many new initiatives, surprisingly little has been achieved.15
The sixth factor suggests that intervention in communities needs to start
with an understanding of communities. However, community studies has
tended to fall off the curriculum as an academic discipline since its heyday in
the 1960s and 1970s. When recently carrying out a study of 14 communities in
different parts of the UK, I looked for comparable up to date studies and
could not locate any.16
This recent study showed that community is a heterogeneous concept. In
some areas, the sense of the importance of community was so strong that
people were unaware that their organisations were community organisations.
For instance, in one isolated rural area of Northern Ireland, there was such a
high degree of mutual interdependence between local people that they did not
have or need a formal organisation. One came into existence only when a
hamlet in the area won a best kept village award without entering for it and
had to constitute itself and open a bank account to receive the cheque. Up
until then, community organisation had depended on patterns of
relationships between people that was not self-conscious and went
unrecognised.
13 Young, Interview.
14 Yates, Community development and community education.
15 Association of Metropolitan Authorities, Local Authorities and Community Development,
p 24.
16 Knight, Voluntary Action.
178
Community Politics
At the other extreme, in an English inner city the sense of collective

community was found to be so attenuated that the term community
organisation had more to do with protecting the interests of the different
ethnic groups that had migrated into the area at different times, first the Poles
after the Second World War, later African-Caribbeans, and then Asians. These
organisations had been set up formally and consciously to provide facilities
for their members and to protect their interests in an increasingly difficult
local economic situation and a hostile social environment.
Community and community organisation clearly mean different things
in the two areas. We urgently need more studies of local communities
preferably on a longitudinal basis rather than as a snapshot to clarify the
different types of communities and to show us how to intervene (or in some
cases not to intervene).
The seventh and final factor is that most of what is really exciting in
communities is happening spontaneously. New grass-roots movements have
sprung up in recent years. They cover the local economy, environment, land,
roads and transport, animal rights, disability rights, other civil rights, and
citizen organising. Initiatives are disparate and uncoordinated. They include,
for example, hundreds of environmental groups working on Agenda 21, 400
Local Exchange Trading Schemes, and 2,000 disabled activists campaigning
for rights not charity.
What these initiatives have in common is that they are organised by
people who experience problems first hand, and who have lost faith in
conventional political systems to deliver solutions. In many cases, action is
intended to create a new and alternative lifestyle for a diverse group of people
so that a broad based organisation is formed. For the most part, organisations
remain outside the grant and contract culture used by the traditional
community and voluntary sectors. Since some groups have been demonised
by the media, they have developed their own press machinery and have
embraced technology, including the Internet, which some regard as a great
leveller.
One of the best organised of the initiatives is called citizen organising.
This is a technique that locates and trains community leaders, strengthens
communities, and contributes to civil society through building a broad base of
people able to take part in local politics. Citizen organising works with
ordinary people, particularly those who originally lack the confidence to
become participants in local, regional, or national public affairs. The
movement is built on a constituency of faith organisations, including
churches, mosques and temples, and includes some secular representation.
The aim is to build a genuine broad base, to include as many different kinds
of people (by colour, race, age, gender, faith, etc) as possible. The common
bond of those becoming involved is a belief in social justice.
179
Citizen action is taken on a multi-issue agenda. The purpose of such action

is to engage with people with power and make them accountable. Such
accountability is applied internally as well as externally, so that at every stage
people are accountable to the organisation as a whole or to their own
communities. Organising is non-partisan, non-ideological, committed to a free
and open society, and has no permanent allies or opponents. Citizen
organising is now established in six locations: the Black Country, North
Wales, East London, Sheffield, Bristol and Merseyside. One sign that this new
force sometimes branded the new politics is coming of age is that The Big
Issue has recently published a book explaining the nature of some of the
initiatives and setting out what they are trying to achieve.17
A key question about the prospects of the new politics is whether the new
politics can meet the old? Will the old politics be re-invigorated by the new?
Or will it try to crush it? Again, only time will tell. My view is that
conventional politics should encourage this new community politics and learn
from it. In many cases, this will involve a government policy of benign neglect
so that the raw energy displayed by these movements can find their feet and
become as a powerful new player on the political stage.
In addition to the question whether the old politics will accept the new,
there is the question whether the new will accept the old. Many of those in the
new politics regard the old politics with a degree of scepticism. As John Bird,
the Editor of The Big Issue, has noted:
The fact that this new administration may not be so sinister and cynical as the
previous government does not in any way guarantee that people involved in
DIY Culture will receive more money or social support. In fact, any
community or grassroots manifestation cant really fit in neatly with those in
power because they have different aims and purposes. What I would like to
hope is that this new government will leave DIY Culture to develop by itself,
to remain independent and self-functioning as an alternative to mass
production and mass pollution.18
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.
180
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.
19 Gibson, The Power in Our Hands: Neighbourhood Based World Shaking.

181
CHAPTER 10
CHARITY AND PHILANTHROPY:

TOWARDS A NEW PERSPECTIVE
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.
THE CONCEPT OF CHARITY

The term charity comes with some heavy cultural baggage. Many of the
labels on it have a religious origin in what are often (misleadingly) termed the
Judaeo-Christian values. Charity, in this perspective, was a badge of virtue
for the donors which enhanced their standing in the community in their
lifetime and would be permanently commemorated on the foundation stone
or the board in their churchs porch. In most versions, charitable acts were also
an imperative necessary to secure the donors salvation.1 These notions
continued to flourish when the societies in which they were first formed
changed under the impact of the industrial revolution. Even the Quaker
factory owners used them as justification for amassing sufficient (though not
excessive) riches on earth.2 True, the Cadburys and Rowntrees used their
profits in part to support good causes and benefit their workforce. But, these
charitable acts were still often seen as a means of building up a spiritual credit
balance in the light of Andrew Carnegies warning that to die rich is to die
shamed.3
But from the recipients perspective, the nature of the transaction often
seemed rather different. Charity appeared not as a justification of wealth, but
1
2
3
Jordan, Philanthropy in England 14801660.

Wagner, Chocolate Conscience.
Quoted in Mackay, Little Boss: A Life of Andrew Carnegie.
183
a camouflage for the motives and practices involved in obtaining it.

Philanthropy was seen from below not as a means of demonstrating common
humanity, but, at best, as a device for filling the empty time in the lives of
middle class women (social work in its original sense). The settlement houses
in working class neighbourhoods seemed even to some who once worked
there not centres for building bridges between social classes in fellowship, but
devices for proselytising in order tame potential rebels and inculcate the
values (and religion) of the dominant class.
Political parties based on mass working class membership (the Labour
Party in the British case) inherited this tradition of scepticism and tried to
ensure that the early steps towards systematic provision of welfare would,
wherever possible, be based not on charity but on citizen entitlement. At least
in part as a consequence of these concerns, the Welfare State in the form in
which it was eventually created had a role for what was not yet called the
voluntary sector, but only a subordinate and supplementary one which
reflected deep reservations about the coldness and condescension implied in
the term charity.4
The concept of charity in the late 20th century therefore inherits an
emotional halo from the past which is still clearly visible. It also lacks
precision. The definition of charity remains fuzzy at the edges and poorly
understood by the public. The notion of charity as it was originally codified in
English common law reflected in its privileging of religion and education the
values of Elizabethan society. It also reflected the morality of that societys
poor law which was designed to cope with abrupt social changes exacerbated
by the dissolution of the monasteries. The untidiness of the resulting structure
as it has evolved over subsequent centuries has attracted the attention of
numerous well intentioned reformers (Gladstone, no less, among them), most
of whom have retreated in frustration with very little to show for their efforts.
Convinced that to win the argument for reform they had only to draw
attention to the anomalies and palpable inconsistencies of the current system,
the advocates of that reform have persistently underestimated the influence of
powerful vested interests always eager to point to the complexities allegedly
inherent in any attempt to set up an objective test of public benefit.
The Charity Commission, child of an earlier 19th century attempt to bring
order to the charitable world and purge it of its more grotesque and corrupt
outcrops, is itself one of those interested parties that have a stake in the
present system. But the pace of reform previously decorous in the extreme
has picked up in the past decade with the Woodfield inquiry and the passage
of the Charity Acts of 1992 and 1993. Under the energetic current Chief
Commissioner, the Commission has moved decisively into the modern age, its
much criticised register of charities now being computerised and posted on to
Deakin, The perils of partnership.

184
Charity and Philanthropy: Towards a New Perspective
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
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).
THE CHANGING CONTEXT

The pressure to use voluntary and charitable effort to reintegrate the
marginalised into the mainstream of society is one of the most vivid
illustrations of the relevance of the debate on the role of charity to that of the
future of civil society as a whole. This debate has been precipitated partly by a
widespread perception that there has been a breakdown of cohesion (or
perhaps more superficially of civility) in advanced industrialised societies. It
taps concerns that would be instantly recognisable to a Victorian
philanthropist about what would then have been called the dangerous
classes and their rejection of the values and behaviour patterns of the
majority.
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.
187
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
REDISCOVERING CIVIL SOCIETY:

A COMMUNITARIAN AGENDA?
Nevertheless, the need to address these issues is often presented in terms of a
rediscovery of civil society made necessary by a failure of the State. It is true
that in the transitional societies produced by the collapse of previous
communist regimes a space has been left which has to be filled, for the most
urgent practical reasons. But this was never true of Western democracies. It
has been well said that civil society interpenetrates the spheres of the State,
government and the market to represent the multiple interests of a mature
7
8
9
Fenton, Report to the Independent Commission on Future of Voluntary Sector; and

Wilkinson, No Turning Back: Generations and the Genderquake.
Foster and Plowden, The State under Stress.
Whelan, The Corruption of Charity.
188
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.
189
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.
13 Hirst, Associative Democracy.

14 See Rees, ch 11, in this volume.
15 Coats, Interview.
190
TOWARDS A NEW NOTION OF CHARITY?

For the concept of charity to be brought back into social policy debate as a
positive factor at least four pre-conditions need to be satisfied.
First, we will need to deal once and for all with the problem of the
previous negative associations of the term. Charitys history as a device for
justifying capitalisms excesses and mitigating its worst consequences is still
not forgotten. There is a real risk that an uncritically updated version could
serve, as Victorian philanthropy often did, as an instrument for social control
or become a mere mechanical device for engaging the trivial benevolence of
the new rich, still doubtful whether charitable giving is sufficiently taxefficient.
Some of the modern forms of charitable giving and participation do not
help the case. The ritual fixes of media charity, the overpaid publicists and
politicians putting something back, and the bazaar atmosphere of random
lottery-charity do not reinvigorate the concept. They cheapen it.
But we should also recognise that alongside these distortions charity has a
demonstrable capacity for evolution as society has changed. Charitable action
has the capacity to express the need for mutual aid that still arises even in
complex modern societies. A useful example is the self-help groups that have
come together around certain medical conditions. In this form, charity
represents not the separate preoccupations of individuals but recognition of
the mutual obligations that help to link the individual and society. It is a kind
of social collectivism.
The case for the modernisation of the concept of charity must rest in large
measure on the contribution that that modernised charity would make to the
reinforcement of civil society and its values. This raises a second key issue,
one of the style in which organisations operating between the market and the
State operate, The contribution made by voluntary bodies to democratic
practice is another disputed area, 16 but new initiatives that involve
individuals at the level of the community must at least be relevant to the
health of local democracy. The transformation of existing organisations into
more accountable forms though democratisation (through action by the
membership is often a messy and uncomfortable process) is essential.
Increasing the informality of procedures, practices and even vocabulary as a
means of (re)capturing the allegiance of the young is also vital.
The third issue is mobilisation and the eternal paradox of charity
organisation, another term with a strong historical resonance. The obligation
for charities to perform efficiently and effectively when services are being
delivered to the vulnerable needs to set against the need to retain spontaneity
and the capacity for flexible response. The standards for performance in
16 Salamon, Holding the Center: Americas Non-profit Sector at a Crossroads.
191
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.
17 Whelan, The Corruption of Charity.

18 Knight, Voluntary Action.
192
CHAPTER 11
PARTICIPATION AND VOLUNTEERING
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
benefit someone (individuals or groups) other than or in addition to close

relatives, or to benefit the environment. However, the researchers did not
present respondents with this or any other definition, preferring to approach
the subject more indirectly, through the identification of various fields of
interest such as sports, exercise, childrens education or health and social
welfare in which people might have been actively engaged. These
categorisations were also held constant over the three surveys, as were types
of activity, with a few modifications like the separating out in 1991 of giving
advice/information/counselling from visiting people.
A broadly similar picture emerged in all three surveys. Around half of
respondents were classed as current volunteers, defined as those having
undertaken voluntary work within the previous 12 months (44% in 1981, 51%
in 1991, 48% in 1997). Approximately 30% in each sample were regular
volunteers, those involved in any one organisation on at least a monthly
basis, and 20% were weekly volunteers. These activities took up a
considerable amount of time. Davis Smith found in 1997 that current
volunteers had contributed, on average, four hours in the past week, and
weekly volunteers no less than nine and a half hours.
Kendall and Knapp, when conducting the British arm of the Johns
Hopkins Comparative Non-profit Sector Project,3 found it impossible to
convert these results into estimates of the numbers of volunteers in each area
of voluntary work, and their own efforts to elicit precise figures from the
voluntary organisations themselves were unsuccessful. However, they have
elsewhere given numerous figures, relating to the early 1990s, which indicate
the huge scale of volunteering in Britain.4 For example, the 75 national
organisations in the Youth Development Sector (part of the International
Classification of Non-profit Organisations (ICNPO), sub-group 4.1) organised
5 m young people, both uniformed and non-uniformed, with over 500,000
volunteers at all levels. The Pre-school Playgroup Sector (same ICNPO
category) employed nearly 50,000 paid staff and utilised the services of
1,400,000 volunteers. The burgeoning Environmental Sector (Group 5) had
17,000 paid employees and at least 393,000 volunteers. In the Emergency
Medical Services Sector (part of sub-group 3.4), nearly 6,000 groups, corps and
divisions linked to the Red Cross, St Andrews Ambulance and St Johns
Ambulance involved over 100,000 volunteers. In 199394, there were in
England and Wales over 15,000 voluntary staff, nearly all advice workers, in
3
4
5
Kendall and Knapp, The Voluntary Sector in the UK.

Kendall and Knapp, A loose and baggy monster, pp 6695.
These workers were not cited by Kendall and Knapp, but are of particular interest
because of the intricacy of the operations involved and the extensive, mandatory
training given to advisers.
194
Participation and Volunteering
Citizens Advice Bureaux (ICNPO sub-group 7.1).5 Outside some areas of

Inner London, the great bulk of advice hours were everywhere supplied by
volunteers.6
Let us now return to the definition of volunteering quoted above, and note
first the requirement that volunteers should be unpaid. Some commentators
like Sheard7 are purist in this regard, for, to them, paid volunteering is a
contradiction in terms. However, the growing tendency to offer volunteers
more than expenses merits consideration. Do such payments negate the
volunteering? There is an incipient distinction here between the initial act of
volunteering and the terms under which the ensuing service is carried out.
The promise of some remuneration may play an essential role in persuading
members of previously untapped groups within the population to put
themselves forward. One should recall one of the very oldest usages of the
word volunteer, to make a distinction with the conscript in the armed forces.
The former, as a reward for his unconstrained action, enjoys better conditions
of service than the latter.
This mention of the most explicit of imperatively co-ordinated
organisations raises a second question, that of compulsion: you will
volunteer, says the army sergeant, and you and you. This looks like another
contradiction in terms, and, indeed, Sheard criticises the National Survey of
Volunteering definition, given above, for omitting a reference to the necessity
for volunteers to act out of their own free choice. Nevertheless, the volunteer
who is more or less under orders has become a familiar presence in recent
years. Much of the voluntary sector spent a good part of the 1980s as a kind of
depot or out-station for the Manpower Services Commission.
Thirdly, much volunteering is carried out not through formal voluntary
organisations but more informally. If this kind of activity is added in to the
1997 National Survey of Volunteering figures, the proportion of adults
undertaking some kind of voluntary work during the previous 12 months
current volunteers goes up from one half to more than four fifths. In terms
of time, current volunteers spent 1.7 hours on average on informal
volunteering activities in the week prior to interview.
Fourthly, one thing on which all commentators are agreed is that it is a
vulgar error to equate volunteering with the voluntary sector. Neighbourly
help is obviously important, and in addition many public agencies, and some
commercial concerns, call upon the services of volunteers. The 1997 National
Survey of Volunteering estimated that 41% of the population were involved in
voluntary work in the voluntary sector, 12% in the public sector, and 6% in the
commercial sector. 8 Conversely, however, many formal voluntary
6
7
8
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
organisations do not use volunteers, or use them marginally and peripherally,

relying upon paid staff for all core service delivery.
Yet there must be some injection of voluntary activity if the voluntary
sector is to be voluntary. This is provided for in all the definitions, for example
the structural operational one of the non-profit sector adopted by the Johns
Hopkins Project. 9 This lays down that entities in the sector must be:
(a) organised (that is, institutionalised to some extent); (b) private (that is,
institutionally separate from government); (c) non-profit distributing (that is,
not returning any profits generated to their owners or directors); (d) selfgoverning (that is, equipped to control their own activities); and (e) voluntary
(that is, involving some meaningful degree of voluntary participation, either
in the actual conduct of the agencys activities or in the management of its
affairs). Non-profit is a wider concept than voluntary, so a specification of
some voluntary involvement as a necessary condition if an organisation is to
be so classified is not an example of redundancy. However, the level at which
this involvement may take place is left open.
Finally, one curious feature of much writing on the voluntary or non-profit
sectors is that its authors seem to adopt an officers or sergeants mess
approach to their subject matter: no religion, no politics. Given the bar on
political purposes which is an outstanding element of British charity law, the
omission of the latter is perhaps more explicable than the former, for religion
is one of the four heads of charitable endeavour listed in Lord Macnaghtens
1891 judgment in the Pemsel case.10 The exclusion from consideration of
participation in sacramental religious organisations removes at one stroke one
of the most important areas of voluntary action. In 1997, such participation
ranked second equal among the fields of activity delineated, alongside
childrens education and just behind sports, exercise.11 Eleven per cent of
the total sample, and 23% of current volunteers, said that they were engaged
in religious activities. Church members are involved in good works of all
kinds. For example, Abrams, Abrams, Humphrey and Snaith12 found the
churches to be the commonest source of initiation of the Good Neighbour
Schemes they studied.
British political parties are less involved than their counterparts in some
other countries (such as Germany) in the direct provision of services to their
members (or anyone else), although their indirect contribution, through policy
formulation and the recruitment and grooming of persons for public office, is
clearly enormous. However, even if the glory days of mass membership
political parties after the Second World War are over, they remain major loci
9
10
11
12
Salaman and Anheier, Defining the Non-profit Sector, pp 3334.

Income Tax Special Purposes Commissioners v Pemsel [1891] AC 531.
Davis Smith, The 1997 National Survey of Volunteering, Table 3.4, p 43.
Abrams et al, Action for Care: A Review of Good Neighbour Schemes in England.
196
of voluntary effort,13 and a similar observation could be made about trade

unions. Activist, after all, is merely a mildly pejorative term for a deeply
committed volunteer.14
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
participatory theory of democracy rests primarily on the human results that

accrue from the participatory process. One might characterise the participatory
model as one where maximum input (participation) is required and where
output includes not just policies (decisions), but also the development of the
social and political capacities of each individual, so that there is a feedback
from output to input.15
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
15 Pateman, Participation and Democratic Theory, p 43.

16 Eg, Harris, Voluntary leaders in voluntary welfare agencies.
17 Harris, Do we need governing bodies?.
198
policy making and priority setting function, a resource acquisition and

safeguarding function, and a boundary-spanning function, which is
elaborated as entailing the provision of a link and a buffer between a
voluntary agency and its environment. 18 Harris grants that these
responsibilities overlap, and that not all will fall to the governing body in
every organisation, but together they form a textbook definition of their role.
She then argues that much current dissatisfaction is rooted in the perception
that, in practice, many governing bodies do not perform the functions officially
prescribed for them, or do so in an inadequate fashion.19
Harris goes on to distinguish four sets of actors: the governing body itself;
the staff employed by the agency (volunteer staff are not accorded a separate
role); the agencys beneficiaries, clients, consumers or customers; and the
guardians of the agency. The last sounds like a vague concept stakeholder
may be a currently more fashionable synonym and the impression of
vagueness is not dispelled by the definition offered: those who have a
positive concern for the long term survival of the agency and its purposes,
who may include founders, funders, former members or former clients. 20
However, the whole point is that the location of these concerned individuals
varies from organisation to organisation, and the contention is presumably
that, even if their identification poses some empirical problems, where no
such people exist the agency is unlikely to enjoy a very long life.
Next, three models are outlined. In the first, the traditional, or
philanthropic association, model, the guardians legitimate, or are the same
as, the governing board, which employs one or more members of staff, who
deliver services to beneficiaries. She suggests that voluntary agencies which
operate according to such a linear chain provide a framework which
facilitates governing bodies fulfilling the functions officially ascribed to
them.21 In this, Harris may be a bit too kind to the traditional model,
efficient and adaptable though it has in many respects proved to be. Problems
arise particularly when (as is usual) board members claim to represent the
community, that loveable but shifty and hard to locate old lag. Frequently,
this representation is validated through AGMs, attended only by retiring
committee members, a few hand-picked aspirants, some stray representatives
of statutory bodies working overtime, paid and volunteer staff, and assorted
friends of the staff and committee members. Much more often than not, the
number of nominations exactly matches the number of places to be filled on
the board.
The second model is termed by Harris the membership model and is
especially applicable to mutual aid groups, self-help organisations and the
18
19
20
21
Harris, Do we need governing bodies?, p 153.

Ibid, p 154, emphasis in original.
Ibid, p 155.
Ibid, p 157.
199
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
22 In order to safeguard client confidentiality, members of Citizens Advice Bureaux

Management Committees are prohibited from seeing case records, and cannot even
discuss individual cases in any save exceptional circumstances.
200
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.
23 Arnstein, A ladder of citizen participation in the USA.

24 Burns, Ladders: the Sherry Arnstein model.
201
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
incomes mostly derived from donations, fund-raising and subscriptions, and

tended to operate at the very local level, that is, the neighbourhood.26 In this
last respect they differed from user-organisations which were as likely to
operate at the level of a town, city or county as at the neighbourhood level.
One can only speculate about the reasons for this strange, if minor,
discrepancy. The giving of time or money for the benefit of others is often seen
as a middle class pursuit, almost certainly wrongly in the case of cash
donations, since the percentage of ones own money given to charity differs
little by income group.27 However, the old image of the Lady Bountiful still
lingers, and so do some of the suspicions it engendered. Working class timevolunteering, it is thought, would be and should be less formal, and more
based on mutual aid and reciprocity, than its middle class counterpart.
However, the trouble with this is that in any locality those who need most
help are able to do least in return and it is, therefore, not surprising that a clear
distinction between helpers and the helped, as in the traditional philanthropic
organisation, is everywhere usual in transactions which do not involve kin, or
are not among close neighbours with a long established exchange of services.
The researches of Philip Abrams and his associates point in the same
direction, even though they stress the importance of reciprocity.28 Indeed,
Philip Abrams was suspicious of altruism, tending to countenance it only as
a special, masked, form of reciprocity.29 Questions about the reasons for
volunteering elicit replies which are partly concerned with the circumstances
triggering a particular involvement, and are partly in terms of wider
considerations, including predispositions and moral or political beliefs.30 It is
therefore difficult, perhaps impossible, to arrive at conclusions about
motivations in any pure form. The available literature typically reports a
melange of reasons for volunteering, of both an instrumental and an
expressive kind. Some of these motivations are decidedly self-regarding,
including the search for companionship and to fill empty time, the desire to
acquire the esteem thought to be attendant on the performance of good works,
and the burnishing of the curriculum vitae in order to obtain entrance to certain
undergraduate and other courses. As Collini has shown, Victorian
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
philanthropists spent hours searching their consciences to decide if their

motivations were altruistic enough; indeed, the word altruism and its
derivatives only came into use in English in the middle of the 19th century.31
Such strenuous questioning of the purity of motives has long ceased to be
fashionable, and no doubt they are usually mixed: however, most of the quids
cited for the quo do not seem to me to detract seriously from the conclusion
that we are encountering here actions which, at the very least, have a strong
other-regarding component. Abrams et al in any case furnish a good deal of
evidence for the proposition that volunteers their volunteers anyway are in
some respects a bit unusual, and that these differences from the general
population cut across social class.32 They compare the characteristics and
attitudes of helpers in the 10 formally organised Good Neighbour Schemes
they studied with those of the residents in the areas which the schemes
covered. Most strikingly, 70% of helpers, but only 42% of residents, identified
themselves with a religion, and 54%, compared with 27%, claimed to take an
active part in religious life. Although working class respondents participated
less than middle class ones, the gap between helpers and residents remained
very similar. (It should be noted that one of the 10 schemes was run by an
ecumenical Christian organisation. The others, however, were all secular).
Abrams and his associates stress that religious motivations were not given by
helpers as major reasons for joining in the schemes (although 24% did cite
them). However, the essential substantive point is made vigorously enough:
It would seem that for most religiously inclined helpers, it is not religious
teaching specifically, but rather a normative code of helping which can be
related to religion, that lies behind their getting involved in organised
neighbourhood care. Indeed, for most of our Helpers, whether they claimed to
be religious or not, participation was broadly associated with the normative
imperative People should care.33
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.
CONCLUSIONS: TWO PARADOXES OF VOLUNTARISM

One aspect of voluntaristic approaches which needs discussion is that
volunteers must be able to depart if they wish without major detriment to
their (material) interests. Just as there is a requirement that initial participation
be unconstrained, so must there be a relatively painless and freely available
right of exit. Someone who gives up paid employment shall we say, for
reasons of principle may well be jeopardising his or her standard of living.
The costs of relinquishing a voluntary activity will be and should be less than
that or so it is felt. Volunteers also may freely choose the causes for which
they volunteer. Beneficence cannot be commanded, since then it ceases to
spring from benevolence. Furthermore, although the evidence is less clear
here, unpaid staff may expect, and obtain, a good deal of discretion over what
they are or are not prepared to do once their services have been accepted by
an association.
There is a paradox here; a Hobbesian paradox, indeed. Voluntarism selfassumed obligation, consent, and the social contract is at the heart of
Leviathan, says Pateman.35 Hobbes atomistic individuals need security for
their interests in their own bodies and their property beyond what they can
acquire through the strength and force which they personally command. As
that personal strength is all that is available in the state of nature, they
35 Pateman, The Problem of Political Obligation: A Critique of Liberal Theory, p 37.

205
therefore have to enter civil society, which entails acceding to an enforced

covenant and submitting themselves to a protective sovereign power. At a
rather later stage in the story, as Hirschman has memorably described in his
study of the arguments for capitalism before its triumph,36 some of the
thinkers of the Enlightenment sought to bring in the interests to counter and
redress the vagaries and arbitrariness of the passions, especially those of the
rulers who wielded this very same sovereign power. At both stages, the aim
was to secure a greater degree of stability and predictability than had
prevailed before.
The relevance of this in the present context may be illustrated by moving
still further forward in history, to the organisation of charity in the later 19th
century. As part of the search for its own version of these same virtues of
predictability and stability both for the philanthropic associations and their
clients the Charity Organisation Society (COS) aimed to formalise the
relationships between bodies set up under the poor laws and charitable
societies. The COS was not actually very successful in organising charities, but
the process it started, of defining and fixing the basis on which public
authorities and voluntary bodies interacted and transacted, has gone on to this
day. Of course, the terms of trade have shifted markedly over the years. The
State moved into the direct provision of social welfare tentatively, and at first
on a very small scale, but since the Second World War a flood of legislation
has placed more and more detailed, mandatory requirements on government
departments, non-departmental public bodies (or quangos), and local
authorities. Public agencies continue to call the shots, in spite of such
stipulations as that of the Major government that 85% of the money
transferred from social security to local authority community care budgets
should be spent on contracts let to the independent sector.
Over 80 years the arguments adduced in favour of public sector
predominance in this field have always been the same. Charitable endeavour
cannot cover the field. Reliance on the donation of money or time would
produce, in the aggregate, a most peculiar pattern of services peculiar at any
rate in the eyes of academics with some groups routinely neglected and
others over-endowed. In a society where strict obligations apply only to close
kin (and even some of these, especially in relation to children, have to be
backed up with legal enforcement), decentralised, individual giving cannot be
expected to play any major role in structuring relationships among strangers.
The essential needs of the vulnerable can only be met through an assumption
of public responsibility. Here it may be noted that Abrams and his associates
found that the only one of the ten neighbourhood care projects they studied
which was said by a majority of its beneficiaries to be vital to their well being
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
perception is likely to grow that unfair advantage is being taken of volunteers.

The government has piled onerous and potentially punitive new
responsibilities on trustees in the Charities Acts of 1990, 1992 and 1993. At
service delivery level, statutory authorities are increasingly enlisting the help
of paid volunteers or sometimes of unpaid ones usually via contracts
with some kind of voluntary body. As Baldock and Ungerson point out, social
service departments have increasingly vacated responsibility for the direct
provision of services at the same time as they have assumed their new role in
care management.40 From either a feminist or a trade union standpoint, this
has its disturbing aspects. The cost advantages of voluntary sector provision
appear to be mainly attributable to the use of volunteers, principally in service
delivery, but also at managing body level. Thus, disquiet about possible
exploitation merges with disquiet about unfair competition.41
The second paradox is not dissimilar, although it has its origins in the
thought of Rousseau rather than that of Hobbes. It can only be lightly
sketched here. Rousseau moved between two utopias the tranquil
household, consisting of nuclear families, largely separate one from another,
and a republic modelled on Sparta. The latter was almost as small-scale as the
former: it is always an evil, says Rousseau, to unite several towns in one
nation.42 His republic also required a high and, as near as possible, equal
level of participation from all citizens. We have seen that his disciples in our
own time agree that this is what democratic citizenship entails. According to
Judith Shklar, Rousseaus novelty lay in his belief that a stark choice had to be
made between the two. She argues that he maintained that all our self-created
miseries stem from our mixed condition, our half-natural and half-social
state.43 However, if these two visions were reconcilable, clearly it was in the
cantonal democracy of rural Switzerland, and perhaps only there:
When we see among the happiest people in the world bands of peasants
regulating the affairs of State under an oak tree, and always acting wisely, can
we help feeling a certain contempt for the refinements of other nations, which
employ so much skill and mystery to make themselves at once illustrious and
wretched?44
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.
43 Shklar, Men and Citizens: A Study of Rousseaus Social Theory, p 5.
44 Ibid, Rousseau, p 149.
208
education and the repeated, almost ritualistic, enactment of citizenship

obligations. Rousseaus standards were austere:
As soon as public service ceases to be the main concern of the citizens and they
come to prefer to serve the State with their purse rather than their person, the
State is already close to ruin.45
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.

209
Another area in which compulsion can prove seductive is where it is

desired, for one reason or another, to produce or represent a cross section of a
particular population. This is commonly the case in schemes of national
service, and is often accompanied, as in the draft in the USA, by selection
through lot, a device designed to trim the available manpower to current
military requirements. At the same time it is meant to be fair, although it
rarely is so in practice, because of exemptions. In Britain, no serious body of
opinion has contemplated military conscription for more than 30 years, but
the notion of Citizens Service has recently secured a precarious foothold on
the political agenda. The establishment of a scheme to be targeted mainly but
not exclusively on young people aged between 16 and 25 formed one of the
recommendations of the Commission on Social Justice,46 following on from an
Issue Paper prepared for the Commission by James McCormick.47 However,
the Commission disavows any idea of conscription, seeing its scheme as a
voluntary community service initiative aiming to meet identified needs and to
bridge the gap between personal, social and learning skills.48 It goes on to
say, grandiloquently and in revealingly military language, that: quality, not
compulsion, will be our recruiting sergeant.49
The trouble with this is that, if Citizens Service is to fulfil its stated
objectives of breaking down social barriers and attracting participants of
varying social class, ethnic and regional backgrounds, it needs to recruit both
young people with prospects, who have mostly done well out of the existing
educational system, and those who have so far conspicuously failed to derive
advantage from it, the unskilled, the never employed, the long term
unemployed, and so on. The Commission rightly rejects selective compulsion,
which would almost certainly be directed at the latter group. The judicial
system has, after all, already annexed Community Service, which otherwise
might have been quite an acceptable alternative name for Citizens Service.
The case for universal compulsion is, however, less easily dismissed. The
Commission seeks to avert it in the usual way, through the erection of a
trampoline of varying incentives, such as educational credits.
Some of the most recent and exciting ventures in citizen involvement, like
citizens juries, attempt to mimic compulsory participation by assembling
panels selected to be representative of the whole adult population.50 Yet, the
distinction between the volunteer and the non-volunteer is pervasive. Even so
radical, indeed eccentric, a vision of democracy as that of John Burnheim, in
which public offices are filled by lot, rests on interested candidates putting
46
47
48
49
50
Commission on Social Justice, Social Justice: Strategies for National Renewal.

McCormick, Citizens Service.
Ibid, Commission on Social Justice, p 363.
Ibid, Commission on Social Justice, p 363.
Coote and Lenaghan, Citizens Justice: Theory into Practice.
210
their names forward voluntarily. 51 The distinction between active and

inactive citizens raises the question of how the interests of the latter are to be
protected. Not all the inactive want, need, or, in the view of some liberal
voluntarists, deserve, such protection; but the spectres of exclusion and its
hardening into underclasses are ever present. However, that should be
obvious, and there is no need to elaborate.
51 Burnheim, Is Democracy Possible?.

211
CHAPTER 12
PARTICIPATION AND LEGAL AUTONOMY
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
Wellington, Common law, rules and double standards, pp 24647.

Eg, Chief Justices of the Australian Supreme Courts of the States and Territories,
Declaration on judicial independence, pp 4345.
213
Let me begin by distinguishing two different, although linked, notions of

legal autonomy. The first is that there is the, presumably uncontested, notion
that politicians must be held to their promises and that a separate assessment
of what those promises mean falls to be made. This is the public equivalent of
pacta sunt servanda, or holding that contracts should be independently
enforced, since these public promises also should be honoured. To put it
another way, holding politicians to their promises ensures the avoidance of
arbitrary conduct, and this is nowhere better illustrated than in the historic
Case of Proclamations.3 The citizenry can plan its life on the basis of rational and
predictable assessments only if this security is given.
Beyond the uncontested level, we are confronted with the question of the
larger constitution. Either there is a constitution or there isnt, and if there
isnt, then either all collective issues are resolved by raw politics (or at best
there is an implicit assumption that process replaces substance), or that raw
politics is acceptable provided that it is mediated by some agreed process,
probably turning on elections. The former position, which is a solution based
on might, is, at least for me, totally unacceptable. The latter would have to be
based on at least some implicit notion of democratic politics and that would
have to be theoretically grounded. Once on that ground, the ultimate
assumptions of constitutional theory become as contestable as almost any
other part of that theory. I have argued elsewhere that there are ties that
bind,4 and I have no wish to remake the argument here, except that I would
probably make it in spades if I were to revisit the propositions which I then
put forward.
It seems to me that almost everyone, if pressed, would say that they
believe in the fundamentals of the constitution. The extreme cases of, for
example, abolition of the judiciary, the replacement (or extending the life) of
the House of Commons, or placing serious limitations on freedom of speech,
would meet with a predictable general response. Indeed, if we cast our minds
back to the 17th and 18th centuries, we shall see that the common law was
assumed to embrace the democratic decencies. We were all brought up to
believe that Parliament was self-denying in important respects.
Added to this, we now have the complexities of the European Union (EU)
and the European Convention on Human Rights (ECHR), and we will soon be
faced with semi-detached Welsh, Scottish and even London assemblies, the
futures of which will only be constitutionally abridged with some little
difficulty and legerdemain. Factortame 5 has already exploded the
omnicompetence myth, and we shall not, I believe, be able to return whence
we came.
3
4
5
Case of Proclamations (1611) 12 Co Rep 74.

Lewis and Harden, The Noble Lie: The British Constitution and the Rule of Law.
R v Secretary of State for Transport ex p Factortame [1991] AC 603.
214
Participation and Legal Autonomy
THE STRANGE CASE OF THE UK

Constitutions, of whatever sort, require a considerable deal of common
agreement, and preferably consensus. They need, at the very least, a special
procedure for underscoring the nations common beliefs and sentiments.
Thus, the Canadian Constitution and Bill of Rights were drafted only after a
fairly extensive and systematic series of roadshows which presented the
proposals to the mass of Canadians with the proposed changes; Something
like consensus was thought preferable to the adoption of more elegant
proposals which were not easily embraced and, indeed, during the
consultation period, it became clear that some previously preferred solutions
were not acceptable at that time.
This is where the UK has problems. It is as if UK citizens had accepted the
Glorious Revolution as embodying nationhood as they understand it. But this
is, to say the least, a strange, mythic consent, and to it one would have to tag
on a belief in a constantly expanded suffrage, the inherent nature of judicial
review, perhaps habeas corpus and perhaps even the Ombudsman.
Constitutional texts in the UK differ widely on what are thought to be
constitutional foundations.
It seems to me clear that the average citizen would agree about certain
principles and indeed institutions give or take a little streamlining being
fundamental, but no one has thought it worth gaining assent to this through a
great constitutional debate. The reasons for this need not detain us. Many are
obvious and self-serving. From time to time, especially when confronted with
principles of EU judicial review, the ECHR, a raft of international covenants,
etc, others convince us that we need to grasp at least some part of this nettle,
but we never go the whole hog.
The intellectual reality must be that a constitution including our
constitution embodies values which transcend individual parliaments,
which are merely entitled to fight over constitutionally neutral options. If this
were not so, Parliament itself would have, as an institution, no superior claim
to virtue than particular governments. Now, of course, particular
governments behave as if that were the case, but their rhetoric is very
different, and the rhetoric represents at least part of the true constitution.
Thus, the limits to extending the life of Parliament, and many other
conventions and assumptions besides, are observed. If governments have
limited powers, then, at least at the level of intellectual argument, the game is
up. What are the limits of those powers? How do we debate them? How do
we resolve them? In the UK, there are no readily available institutional or
intellectual answers. But answers there must be.
It is interesting to note how this simple, logical, argument can be ignored
in the general scholarship surrounding our constitutional affairs. But the fact
remains that, once limits on executive power are conceded, we are on a
215
slippery slope. Concessions to the separation of powers and legal autonomy

then become, to a large extent, a matter of degree. The second generation
social and economic human rights tend to cause apoplexy among elected
politicians if a hands-on role for the judges is envisaged. But, although one can
see the dangers in non-elected judges engaging in distributive justice, the
argument for political or executive illimitability remains ultimately
unsustainable.
Let us accept that if a polity, including ours, has any constitutional content,
any notion of limited government, then it has to accept a version of legal
autonomy and, I shall argue, of judicial autonomy. The limits cannot, ex
hypothesi, be determined in the political sphere. Politicians cannot be allowed
to decide on the limits of their powers without some prior constraint. There
has to be an independent judgment. We can argue about what constitutes
independence, and we can dispute the qualifications of those best fitted to
make a judgment, but the concept of limitability and independent verification
is inescapable.
Recent reassertions of judicial independence have been forceful, and the
quest has been undertaken to establish a position in which the least
dangerous branch6 will rule on constitutional parameters. Whether the
method of reason familiar to the discourse of moral philosophy is what is
needed, and if so, whether traditional judges are best suited to use this
method, can be debated. However, Bickel surely is right to argue that: Judges
have, or should have, the leisure, the training and the insulation to follow the
ways of the scholar in pursuing the ends of government.7 Ely echoes this
sentiment:
Since judges tend generally to be drawn from roughly the same ranks as
legislators, the heart of the argument here is that moral judgments are sounder
if made dispassionately, and that because of their comparative isolation judges
are likely so to make them.8
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
Running errands may be necessary, but it is hardly Athenian stuff. It is not

what we imagine Pericles doing. Furthermore, the reference to unelected
administrators and to giving operative meaning to delegations may be seen
by British observers in a new light after the Arms to Iraq affair and the Report
of Sir Richard Scott.10 There is little obviously democratic in legislators
refusing to legislate but allowing broad delegations to unelected officials. That
simply allows legislators and officials to escape the sort of accountability that
is crucial to the intelligible functioning of a democratic republic.11
9 Ely, Democracy and Distrust: A Theory of Judicial Review, p 131.

10 Scott, Report of the Inquiry into the Export of Defence Equipment and Dual-Use Goods to Iraq
and Related Prosecutions. See, further, Lewis and Longley, Ministerial responsibility: the
next steps.
11 Ibid, Ely, p 132.
217
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
their record of imposing obligations on the administration/Executive to give

reasons for decisions in the field of land use planning. Any disinterested
assessment of their record over, say, a 40 year period will exonerate them
from charges of political interference. When they have sent decisions back for
reconsideration, it has almost always been on the grounds that the decisions
were taken without adequate consultation and without relevant
considerations being taken into account; in short because the executive failed
to pay adequate attention to rational discourse. And this is precisely what
they were asked to do, in the same way that American judges have been asked
to assert the hard look doctrine in the context of rule making, or policy
making as we should prefer to describe it.13
When British judges have, arguably over-stepped the mark or got things
wrong quite clearly in Wheeler v Leicester City Council14 and in the Bromley
case15 probably being right-for-the-wrong-reasons it has almost certainly
been because they have not been encouraged to think through their
constitutional role. Not accustomed to being asked to weigh issues of
constitutional balance with an Olympian fastness, they nevertheless have an
obligation to strike down Westminster governments for overstepping their
jurisdiction.
My own belief is that judges do not permit themselves to go far enough in
calling policy makers to account for the processes by which policies are
reached. The imposition of due process writ large, so to speak, should be their
duty and, aside from requiring reasons for decisions, they have avoided
calling the executive properly to account for the way they arrive at decisions.
They could have done so, and should do so, without ever trespassing on the
merits of the case. On the other hand, there is no getting away from the
merits when bills of rights/human rights are involved. My argument is that
judges merits are likely to be more substantial than the merits of the politician
for the simple reason that the latter is almost certainly looking at what is
deemed expedient, and not at constitutional merit based on deep down,
entrenched, moral rights. We have to have faith in the least dangerous branch.
Processes are crucial to the nature of an open democracy, and although our
own democracy falls short in this regard, the judges can be entrusted to do
more in this arena than they traditionally have done. Nonetheless, the
sceptical view that the process of policy making is a higher value than the
content of policy making is a difficult position to defend in this postHolocaustal age.16 And that was written before ethnic cleansing in Bosnia.
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.
219
However, to return to an earlier point. If we once concede constitutional

limits, then we have to face the content of the constitution and ask of what our
deep down rights consist. If we opt, inter alia, for autonomy and participation
as constitutional entitlements, then we must seriously rethink the nature of the
separation of powers. At this point, the argument is joined in earnest. We may
not believe that autonomy and rights of participation should be respected, but
we shall have the devil of the job to defend such an anti-humanistic assertion.
But, if we believe that these rights should be respected, then we have to think
again about the limits of the judicial reach. We assert the human condition; we
assert that raw politics is too partisan to be the final arbiter of decision
making, and so we must refashion our institutional thinking and our methods
for getting public/private business done.
THE JUDGES AND THE NEW LANDSCAPE

By now, we have conceded the idea of a constitution and accepted the
consequent necessary limitation of the legislative/executive branch. The next
question is, then, what we pour into the constitutional bottle? I shall not even
address the issue of first generation human rights, which has been so well
addressed elsewhere, but turn to second generation rights.
Second generation human rights have been accepted by the UK since the
1960s, although remedies for their infringement have been anaemic compared
to the accepted enforceability and justiciability of the traditional civil and
political rights. The case for enforceable second generation rights has been
forcefully made by Alan Gewirth, and in this book by Mary Seneviratne, as
well as being sketched out a few years ago by both Dr Seneviratne and
myself. 17 There have been recent attempts by the Council of Europe to
improve the reporting procedures attached to the Social Charter, although
they still leave a considerable amount to be desired.18 Any movement on this
front is to be welcomed, especially since, until recent times, Isiah Berlins
famous opposition to asserting positive rights has dominated the thinking of
Western intellectuals.19
At the time of writing, the Blair Government, although radical in historical
terms, has seemed to back off from a number of its promises of constitutional
reform. But, it should not be forgotten that only three years ago Graham
Allen, the Labour Partys spokesperson on Democracy and the Constitution,
advocated the importation of a second generation of human rights into the
17 Lewis and Seneviratne, A social charter for Britain.

18 But, see Harris, A fresh impetus for the European social charter.
19 Berlin, Four Essays on Liberty.
220
British Constitution in a Labour Party consultation document. It is as well to

quote Mr Allen directly:
The first stage consists of Labours commitment, endorsed at the 1993 Party
Conference, to a two stage implementation. Firstly, the passing of a Bill to
incorporate into British law the civil and political rights found in the European
Convention on Human Rights Secondly, for an all Party Commission to
deliver to Parliament within two years a home grown British Bill of Rights
which, as well as updating the civil and political rights found in the ECHR,
would also include social and economic rights.20
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.
221
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.
23 Allen, Labour and Rights: Stage 2 A British Bill of Rights, p 2.

222
It is also worth reminding ourselves that the former Iron Curtain

countries, advised by the Council of Europe, have almost all adopted
constitutions which promise some socio-economic rights. It is too early to
draw firm conclusions from their experience, but the fact that they (and the
Council of Europe) regard material well being as essential to rational
purposive action is, it is submitted, important in itself. The Maastricht
Protocol, or Social Chapter, may presently be limited in scope, but it comes
out of the same stable as the European Social Charter. It is not presently
possible to envisage the juristic relationship between the European Court of
Justice and the Council of Europe institutions in the years to come with any
precision, but it would be surprising if it did not begin to cement expectations
about a broader concept of rights than is presently accepted by member
countries.
However, the question of enforcement or justiciability will have to be
addressed. My own view is that the new rights must be entrenched at some
constitutional level, and that we have to think about constitutions more
flexibly than formerly if we are to grasp this nettle. The position adopted by
Allen is that, to some extent like India, the new rights should be established as
underlying principles against which government action should be judged,
rather than enforceable entitlements to specific forms of provision:
This would not only be a massive step forward but a focus for further
campaigning about improving service levels. It would be important, however,
to ensure that the mechanics of implementing these rights could lead to some
practical advantages as well as establishing clear principles and contributing
to civic education. The introduction of social and economic rights will not, of
course, inhibit the passage of normal statute law to improve specific provisions
or introduce individual entitlements. On the contrary, it will be a stimulus for
Parliamentary bills on a wide range of employment and social policy matters,
and influence the shape which they take.24
As a stepping-stone, he argues for a version of procedural rights the right to

fair treatment which appears to seek to enshrine the principle of natural
justice or fairness. This clearly is a step in the right direction, if hardly a step
far enough. In any event, Allen sees these process rights as essentially
enforceable below the level of the courts, through ombudsmen, audit
arrangements and the like. I shall not develop the perceived advantages of
this idea here, but refer the reader to Allens text. However, it is worth noting
that Mary Seneviratne, in her contribution, also argues for some version of
process rights to underpin social and economic expectations, and adds that
the doctrine of proportionality might help buttress enforcement. This is an
interesting idea, to which I would add one more which might still be regarded
as essentially procedural. This is that a requirement for a government to
report back on an adjudged breach of second generation rights could be
223
accompanied by a degree of cross-examination of that response by interested

parties. This could be achieved by an independent regulatory process or, if we
are to seek to smooth parliamentary feathers, by the procedures of Parliament
itself.
A second avenue for Allen would be provided by the establishment of the
HRC. As in Canada, the HRC would be able to make submissions, initiate
proceedings, conduct negotiations, issue codes of practice, examine the
implications for rights of proposed bills, report to Parliament and undertake
research and education when human rights are seen to be violated. Given the
similarity of these ideas to those proposed by Dr Seneviratne and myself some
little time ago, I am bound to welcome them. However, Graham Allen
remained coy about the role of the courts, since he implies their ultimate
authority without sewing them doctrinally into his overall system of
jurisprudence. Still, these are difficult matters, not least for serving politicians.
In accepting an inevitable role for the courts, Allen seems at one point to
be falling over backwards. Thus:
If, say, inadequate social services and community care are provided and no
appeal to a special tribunal or appeal existed, an order for judicial review could
be sought asking that the public body concerned, whether central or local
government, carry out its duty.25
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

26 This is still without prejudice to the argument that, in the ordinary case, commissions,
ombudsmen and others may well be the best first port of call.
224
response should be made to such infringements is another matter. It is

perfectly possible to leave the remedy for an infringement with the political
authorities, while investing the courts with the power to determine whether
even prima facie rights have been infringed in the first place.
Again, the response of the Indian courts is worth noting. Last year, for
example, the Supreme Court responded to litigation brought by members of
the public to direct the government on issues including removing garbage
from Delhi, shutting polluting industries and endorsing the governments
method of privatising its telecommunication services. In February 1996, the
court ordered the bureau of investigation to conduct an inquiry into what it
called a housing scam, in which officials of the urban development ministry
allegedly allotted more than 8,000 houses out of turn to MPs, officials and
former ministers. Frequently, the courts have insisted that government, or its
agents, conduct audits to ensure that they have taken economic and social
rights seriously and to report back on the progress made. The attendant
publicity is often remedy enough, but the sheer flexibility of the remedies
adopted shows how valuable courts can be in affirming rights in the area,
even if those remedies are not accompanied by compulsion. I would argue
that fears of judicial tyranny are unfounded, because judges themselves are
aware of the fact that the non-elected judiciary is neither meant to nor
equipped to act as a policy making body. It is notable that the judges of the
Supreme Court are appointed by the president, a figure above party politics.
The issue of enforcement of socio-economic rights clearly is controversial.
As a general rule, I would argue that judges should decide on the ought and
politicians on the can. That is to say that the judges would identify a breach,
and the politicians would decide on whether a government was able, within
its own assessment of the imperatives of its own economic policies, to afford a
remedy. This involves an ideal typical divide and the jurisprudence of
Continental Europe, for example, shows that certain social and economic
rights are capable of constitutional enforcement. The right to education and to
housing are obvious examples, with health being not far behind.
The decision in R v Cambridgeshire Health Authority ex p B27 indicates both
the difficulties inherent in making judgments in this area and also the
possibilities for more imaginative use of judicial techniques. Although the
Court of Appeal ultimately decided that they could not adjudicate on the
allocation of scarce resources, the judgment of Sir John Laws at first instance
indicated greater willingness to intercede, and greater flexibility in the use of
judicial procedures. 28 Were a constitution to have entrenched second
27 R v Cambridgeshire Health Authority ex p B [1955] 2 All ER 129.

28 James and Longley, Judicial review and tragic choices.
225
generation rights at some level, not least through a series of directive

principles, it is doubtful if the Court of Appeal would have been quite so
formalistic.
In any event, there are areas where it would not be improper, in my view,
for courts to cross swords with government. For example, if the right to an
adequate standard of living were entrenched, it would not seem improper for
Courts to refuse to allow the abolition of Wages Councils, Fair Wages
Resolutions and the like, without at least some guarantee that other
procedures necessary for the pursuit of similar ends were put in place. If we
take social, economic and participative rights seriously, we have an obligation
to debate these matters and to ensure that our legal and constitutional
arrangements reflect our basic beliefs.
It is important to stress that new, flexible, legal remedies are called for in
order to underwrite what are constituted as new constitutional rights which
have more significance than simple primary legislation. Sometimes ordering
the government to conduct an inquiry with a broad-based input will be
enough as the aim would sometimes simply be to ensure that the government
had taken such rights seriously, even if the political response to such an effort
would not satisfy others. Once we abandon the belief that legal institutions are
only suitable for adjudicating in simple rights/duties/entitlement situations,
we can look forward to seeing our larger constitutional expectations unfolding
gradually, and hopefully, consensually.
Participation may usefully serve as an example. If an ombudsman or court
had found that it was not being adequately encouraged in any particular
context, it might order an investigation and/or a report or inquiry in much the
same way that the Indian courts have done. It would be for the court to decide
whether the response was satisfactory. In circumstances where large
budgetary sums were involved, it would not be acceptable for the courts to
make affirmative orders. They might wish, however, to ask for a further
report at some later date to describe what progress had been made. This is, in
a manner of speaking what the Council of Europe already does, albeit in
rather an ineffective way.
It would be a grave error to believe that either ombudsmen or courts
would seek confrontation and flex institutional muscle. On occasion firmness
would be required, but that is already the position in many fields. The
purpose, after all, would be to make real the goals of life which the
constitution, informed by a spirit of national unity, expressed. Constitutions,
after all, must reflect the aspirations of the nation, not a faction. Autonomy,
equality, non-discrimination and participation (which is a function of
purposive rational action) go to the heart of what we know about ourselves
and our relationship with the world. What to do about these needs poses,
according to Gewirth, the major challenge that confronts moral and political
226
philosophy.29 To which it is only necessary to add some words of Ely, albeit

used with something of a spin:
constitutional law appropriately exists for those situations where
representative government cannot be trusted, not those where we know it
can.30
29 Gewirth, A Community of Rights, p 357.

30 Ely, Democracy and Distrust: A Theory of Judicial Review, p 183.
227
CHAPTER 13
THE SEPARATION OF POWERS IN THE

CHANGING ENVIRONMENT
Patrick Birkinshaw
The separation of powers exists to prevent the rise of arbitrary executive
power.1
INTRODUCTION: KNOW THAT WE HAVE

DIVIDED IN THREE OUR KINGDOM
The separation of powers is seen as an essential element of good government
which can be traced to the notion of balanced and mixed constitutions in
medieval writings and ancient literature.2 In the 1960s, the doctrine was
subject to a good deal of scepticism which was, in effect, a particular form of
the general paradox of legal order identified by RM Unger: the more one
looked for that order, and the more one identified it in descriptive outline, the
further it receded as a real practice.3 The separation of powers was yet another
paradoxical ideal of liberalism, the realisation of which would forever be
frustrated by the attempted practical application of those ideals. And of
course, as AV Dicey realised in his Law and Public Opinion in England
(particularly in the Introduction to the second edition), the age of
collectivism and regulation would inexorably undermine the doctrine, or at
least Diceys version, even to the extent of introducing a droit administratif in
England. But the doctrine endures, its necessity reinforced no doubt by the
excesses of the executive during the 1980s and 1990s. Where the doctrine is
not observed at all, the executive inevitably assumes all the responsibilities of
government. Historically, to take a British example, all the power and
institutions of government evolved from the Crown. Where my will is law,
and where I stand in judgment over that law, there is an inevitable decline
from self-certainty to autocracy, to impatience, to arrogance, to arbitrariness,
and to tyranny. The lesson is timeless.
The strident tone adopted by judges in both their judicial and extrajudicial utterances since the early 1980s was a calculated reaction to high
1
2
3
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.
229
handed government in this period. Volumes have been written on executive

interference through the legislature so easy to achieve when the executive is
a part of and dominates the legislature, as in the UK with judicial sentencing
powers. A long chronicle of litigation expressed a judicial desire to fashion a
power of judicial review subtle enough to counter executive excesses that
were not simply manifestations of egregious error. The cases include the
GCHQ decision banning trade union membership at the national intelligence
centre in which, although the Government was successful in the litigation, its
exercise of prerogative powers was held subject to judicial review on the same
basis as the exercise of its statutory powers.4 Injunctions have been awarded
against officers of the Crown in their official capacity even when no question
of infringement of EC law had arisen.5 More recently, in the Fire Brigades
Union litigation, the courts ruled invalid an attempt by the Home Secretary to
resort to prerogative powers to implement a tariff scheme to compensate the
victims of violent crime, powers which were inconsistent with an existing
statutory framework which allowed for the introduction of a more generous
scheme of compensation based on tort.6
Also well known were the attacks on judicial independence brought about
by that Treasury bludgeon, the Courts and Legal Services Act 1990, and the
former Lord Chancellors7 alleged interference with the independence of the
Chairman of the Employment Appeals Tribunal, whose desire to do justice to
the parties before the Tribunal led him to furnish them with procedural
safeguards which were felt to be too costly for the taxpayer.8 In sum, since the
early 1980s, the rule of law has had to be safeguarded with particular
vigilance, and the judges have ruled on the law and its scope accordingly.
Judicial intervention in human rights cases has, to the judiciarys credit,
been prominent and, as I shall explain, seems set to be encouraged by the
Human Rights Act implementing the European Convention on Human
Rights (ECHR) as a system of interpretative principles. Even the tariff period
set by the Home Secretary on those prisoners who are sentenced to mandatory
life imprisonment (or, in the case of young offenders, detention during Her
Majestys pleasure), which he felt was the minimum period of imprisonment
necessary for punishment and deterrence before those prisoners cases could
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
The Separation of Powers in the Changing Environment
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?
WHY A SEPARATION OF POWERS?

The doctrine of the separation of powers is really about high politics. It
represents the view from the summit of government. It is in the peoples
interest not to be governed arbitrarily. What is best for the people is also best
for those who rule in the interests of good government and its survival.
Absolutism destroys all it touches. Those in power are eager to define the
territories of others in power so as best to protect their own patch while
simultaneously protecting citizens, and themselves, against abuse, and so
those who carry out the functions of government tend to adopt a top-down
view of the constitutional architecture. Nevertheless, by separating the powers
of government, our governors help to preserve those values which underpin
our social system. These are justice, equality, liberty and welfare.
9
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.
231
The separation of powers involves a separation of institutions into the

executive, the legislature and the judiciary, although historically (and as John
Locke believed) the exercise of the judicial power was inherently part of regal
and executive responsibility. Even today, judges are Her Majestys judges.
Historically, of course, judicial concern was with justice as between subjects
not as between Crown and subjects except where the Crown was prosecutor.13
There is a further separation of functions corresponding to the three
institutions: the executive/administrative, the legislative and the judicial. Each
institution of government must perform its own function and not trespass
onto anothers domain. Once again, although these divisions (even if only in
ideal typical terms) seem second nature to us today, if we examine Locke we
see that not only is the judicial function part of the executive, with a
consequential fusion of functions, but the federative power to conduct
foreign policy is distinguished from the executive and legislative powers,
although those who exercise that power will be a part of the executive. As
MJC Vile has argued, this was an insightful observation by Locke, who of
course wrote at a time when Parliament was attempting to constitutionalise
the Monarchy. Nevertheless, the ceding to government of the right to conduct
foreign affairs has led to the position in which, to this day, foreign policy is an
area largely unsupervised by Parliament and domestic courts, as can clearly
be seen from the paucity of the information placed before the Westminster
Parliament on the second and third pillars of the European Union.14
The third feature is a separation of personnel. No individual should
perform different functions in different institutions of government at any one
time and there should be no duplication of role by any one person. However,
any first year law student can point out the anomalies in the British
constitution which still remain with us as a result of the fact that all the
powers and institutions of government evolved from the Crown. The Law
Lords form a judicial committee of the upper legislative chamber and are part
of the High Court of Parliament. Prosecution is an executive function which
ultimately is the responsibility of a member of government who is also an
elected MP.15 Perhaps most anomalous of all, the head of the judiciary is not
simply Speaker of the Upper House and a member of the Cabinet but, in the
case of the current Lord Chancellor, a particularly active member presiding
over several crucial committees, as well as being the person who effectively
appoints circuit judges and has the single largest influence on the
13 Sedley, The sound of silence: constitutional law without a constitution.

14 The Amsterdam Treaty has improved the position under the third pillar, but not at all
under the Second. The Treaty revisions still leave it in the hands of national
governments to pass on information, rather than imposing a legal duty on them to do
so. Birkinshaw and Ashiagbor, National participation in Community affairs:
democracy in the UK Parliament and the EU.
15 On the role of the Attorney General in upholding the public law, see Attorney General v
Blake [1998] 1 All ER 833 (CA).
232
appointment of senior judges.16 This point was seized upon by commentators

when two conservative commercial lawyers were raised from the Court of
Appeal to the House of Lords though their future responsibilities would
include interpreting the Human Rights Act. Would they possess the necessary
qualities, it was asked in the summer of 1998, to interpret that Act in a manner
which provided adequate protection against the State?
But, it is an unrealistically simplistic model which sees the legislature only
legislating, and the executive only governing by making policy and executing
the laws. For a good deal of this century, the term administrative was used as
a cloaking device to justify excessive use of discretion by the executive when
carrying out what were essentially judicial tasks without applying any of the
formal procedural protections which would have been afforded in a court of
law. The judicial response was to describe some administrative functions as
quasi-judicial, thereby affording at least some protection against unfairness
by applying rather rigid tests of natural justice. The executive resorts to
making secondary legislation which is far more voluminous than primary
legislation; the judiciary participate in administrative practices, and so on. The
legislature has interfered enormously in the judicial sphere. Under s 3 of the
European Communities Act 1973, Parliament instructed British courts that
they were to follow rulings of the European Court of Justice (ECJ) in matters
of Community law. In fact, it is remarkable how flexible and fluid a system of
government the British system is, especially when one sees the constant legal
barriers placed in the way of governments elsewhere by a more rigid
adherence to the separation of powers doctrine.17
The legal inviolability of the Attorney Generals office, and his
responsibility to the House of Commons alone, together with the confusion of
the roles of the Lord Chancellor, emphasise the balanced constitution which
has been the British legacy rather than any attempt to realise the ideal typical
concept of the separation of powers identified in theoretical literature and
pursued in other political systems. The pragmatic British experience
appreciates that different functions in government require different decision
making approaches and different skills and techniques. So long as there is
appropriate accountability, then the fact that there may be some confusion of
roles is of no great concern. Whether there is appropriate accountability is
another matter.
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.
233
SEPARATION OF POWERS AND PARTICIPATION

Vile has observed that the separation of powers is a deep rooted desideratum
revealed in the experience of government, the spirit of which gives shape to
different features and practices over time. Different constitutions set different
boundaries to the practice of the functions of government, some more rigidly
so than others, so that in some countries the observance of the doctrine is
constantly setting limits to what one branch of government legally may do.
This is particularly true in the US, but it is also a common feature of
constitutional litigation in Germany and in France. Judicial determination of
the respective law making powers of the Executive and the Parliament is a
marked feature of the French constitution. The doctrine basically
acknowledges that in modern societies power can be exercised only by a few
and that the few must exercise diffuse forms of power in a different, distinct
and divorced manner to avoid its contamination and corruption. It is here, I
think, that participation stands in opposition to the separation of powers
doctrine as traditionally understood. The wider diffusion of power which is
implicit in greater participation represents a further dilution of power bases
which are already separated and a movement from a representative to a
participative model of democracy.
Such a move is often seen as highly questionable with regard to the
judicial function. There is no obvious reason why adjudication should be
subject to participative democracy. We do not elect our judges though we do
allow for community participation in criminal justice. Over 90% of criminal
judges are lay citizens appointed by the Lord Chancellor and the judges in
indictable or either way offences tried on indictment are juries of lay persons
chosen from the electoral roll. Lay membership of tribunals is widespread.
An advisory committee on judicial appointments, two of the four members of
which are lay members appointed by the Lord Chancellor, advises the Lord
Chancellor on judicial appointments up to the circuit judge level.
Nevertheless, it obviously is unclear whether extensive participation in those
aspects of the judicial function which turn on legal technique is appropriate.
Turning to the executive function, greater participation is more obviously
welcome. Greater participation by citizens may well lead to a communicative
constitution which is built on norms of transparency and self-fulfilment
through collective enterprise. It will lead us away from a constitutionalism of
institutions in which a strong State dominates and in which notions of State
sovereignty, built upon doctrines of a separation of powers, prevail. In the
communicative constitution, the role of the State declines as its mystique is
dispelled.18
18 Himsworth, In a state no longer: the end of constitutionalism, p 659, citing Morison
and Livingstone, Reshaping Public Power: Northern Ireland and the British Constitutional
Crisis, chs 1 and 7.
234
There is little that is new in discussing the movement from representative

to participative models of democracy.19 But, it is novel to consider how that
movement may be built into a constitutional framework and seeing what the
effect of doing so would be upon the separation of powers. The relationship
between the separation of powers and those constitutional guarantees of
participation which Douglas Lewis has advocated in his contributions to this
book poses new problems because the separation of powers is, as I have said,
an elitist doctrine. So also is government. But, the separation of powers is a
construct which is absolutely necessary where power is ultimately exercised
on a representative basis, and a representative basis is the ultimate truism of
those systems of government with which we are all familiar. And it is a
construct which represents basic necessities about collective endeavour and its
direction. These necessities are: executive effectiveness; participative
deliberation; and the quest for justice.
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
19 Macpherson, The Life and Times of Liberal Democracy.

235
promised early publication of Bills, contemporaneously with a White Paper,

and this happened in the case of the Human Rights Bill, though it did not
publish a Bill in the case of the Freedom of Information White Paper because
further thought had to be given to the finer points of legal detail in this case.
The increasing use made by government of the internet could revolutionise
participative democracy so that early publication of Bills, White Papers and
other parliamentary publications could lead to enormous citizen feedback. But
not all citizens have access to the internet and its greater use may heighten
alienation and inequality, rather like the introduction of different payment
methods by the utilities which resulted in higher financial and other costs for
those without bank accounts or telephones.
An example of good practice is being set by the European Parliament,
which is putting more and more of its legislative programme and official
publications on the internet. The UK Parliament should develop a role as a
forum for public debate of the European agenda, the precedent for this
already having been established by the Danish Parliament.20 Devolution has
encouraged wider participation in, for instance, parliamentary committees in
Edinburgh, as well as an extensive use of telematics to achieve democratic
innovation.
The doing of justice

We do not elect our generals, judges or professors. The judiciary is the most
elite group in government because the development of judges skills requires
long training in, and experience and mastery of, legal doctrine, and the
elevation of judges depends upon peer support based on success in an
exclusive and privileged profession. The judiciary should never seek populist
approval in respect of the exercise of that part of their task that is rooted in
legal doctrine and the principles of justice. But judges cannot be at
loggerheads with social and popular culture, or at least not regularly so. There
may well be questions concerning judicial appointments and judicial training,
however, which do raise important questions about exclusiveness which have
to be addressed.
At present the appointment of judges is an internal and mysterious
process. In October 1997, it was announced that High Court judgeships were
to be advertised for the first time. But the Government has shelved
indefinitely plans to establish a Judicial Appointments Commission. This
would have helped in the appointment of judges and would have involved
lay members. Senior judiciary were opposed to such a body. Possible plans
20 Millar, Appendix, p 333. For democratic innovations in Scotlands devolved

Parliament, see Citizen Participation and Social Partnerships.
236
are said to include the establishment of an ombudsman to receive complaints

from those who believe they were rejected unfairly for judicial appointment
and an annual report for Parliament on the judicial appointments system
commencing in 199899.
Pressures to reform the appointments procedure are bound to increase the
more we witness the development of a career judiciary, most of the members
of which will be dependent upon promotion, and therefore on the approval of
superiors, for increases in their income. Those seeking a position as a Recorder
or full time employment as a circuit judge are subject to constant monitoring
and appraisal. The number of competences which will be monitored
presumably will grow following the Woolf reforms of civil justice which will
make the judges managers as well as adjudicators.21 Between 1970 and 1995,
Malleson has calculated that there was an increase in the number of judges
from 200 (which seems a low figure) to 1,800.22 Most of these are seeking full
time employment as circuit judges. However, those members of the judiciary
directly concerned with the protection of individual rights against
government and embroiled with collective and policy making procedures in
public law, whose independence from government therefore is regarded as
essential (that is, judges of the High Court, Court of Appeal and the Law
Lords), number less than 150.
THE JOBS OF GOVERNMENT

The three different jobs of government distinguished in the separation of
powers revolve around three different types of decision making each of which
requires distinct skills and attitudes towards decision making. The tensions
that exist between these three have been the basis of much of political and
legal debate over centuries. That these tensions exist is no bad thing providing
they do not make the work of any one branch of government impossible or
unnecessarily burdensome. Of course, some people may be possessed of the
skills necessary to take all or at least more than one of all of these three types
of decision. Those skills do overlap and, doubtless, the different decision
makers have much to learn from each other. But, in their essence, these jobs
involve different approaches to different problems. Again, hear Vile:
It cannot be too strongly stressed that procedures, the rules governing
behaviour, reflect certain value-patterns. The way in which things are done
makes a very great difference. Men could be condemned to death, and in some
countries are, by an administrative procedure. Roads could be built by a
21 Woolf (Chair), Report of the Committee on Access to Justice.

22 Malleson, Judicial training and performance appraisal: the problem of judicial
independence. The calculation was based on figures given by the Lord Chancellors
Department.
237
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.
THE SEPARATION OF POWERS AND NEW INSTITUTIONS

The nature of the decision making structures that are fostered by the new
environment of participation that we wish to see requires close analysis. An
extension of the regulatory and responsive State through administrative
agencies, bodies and tribunals makes it necessary to provide the safeguards
which must accompany more participative forms of procedure. The rule
making exercises and licence revisions by which OFTEL has encouraged
greater participation in the running of the telecommunications agency seem to
be a good example of what is needed. The Government has engaged in a
variety of consultation exercises to try to formulate suggestions to make
quangos more accountable.24 Such bodies often are symptomatic of an
23 Vile, Constitutionalism and the Separation of Powers, p 347.

24 Cabinet Office, Opening Up Quangos.
238
undermining of a separation of powers approach to government in which the

divisions of responsibility become blurred, often seemingly deliberately in
order to render the executive power less accountable.
The New Labour Government has introduced various reforms covering
bodies such as quangos which seek to meet concerns over accountability,
openness and appointments. The White Paper on freedom of information,
Your Right to Know, has indicated that meetings of NHS trusts will be open to
the public; it referred to the reforms indicated by the Nolan recommendations
which led to the Commissioner for Public Appointments. There is a
Commissioner for Public Standards. The Food Standards Agency promises to
be more open than the arrangements between the Ministry of Agriculture,
Fisheries and Food and its specialist advisory agencies and committees have
been. One could go on.
THE NEW ENVIRONMENT AND ITS

IMPACT ON EXISTING INSTITUTIONS
What will be the impact on existing institutions of greater participation? It
may be correct to say that there is little that can be done with existing
institutions and that the greatest opportunity to participate will be provided
by devolved tiers of government and regional bodies closer to the people such
as regional planning authorities. What would a more participatory Parliament
look like and how feasible would it be? If anything, Mr Blairs government has
displayed itself in its most conservative mode in its deliberations on the
sovereignty of Parliament. Sovereignty will be maintained at all costs. It is the
Westminster Parliament that will be sovereign in reserved, devolved
government, and it is the Westminster Parliament that will remain sovereign
after the incorporation of the ECHR. However, in its White Paper on Freedom
of Information, the government has opted for a Commissioner who will have
the power to make decisions binding upon public bodies covered by the
legislation and who will not have to enforce those decisions through
Parliament, like the Parliamentary Ombudsman. There will be no Ministerial
override of a Commissioners decisions, although ultimate enforcement will
be by a court treating an authoritys failure to comply with a Commissioners
decision as a contempt. However, as publication of the Bill was delayed,
rumours began to circulate that the Commissioners decisions would be
appealable to a tribunal.
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
239
the irresistible momentum, commented upon by many, towards globalisation.

This internationalism has done more to promote the culture of legalism in
European national governments than almost anything of which I can think.
This is certainly so in the case of our own government. Powerful and
influential judgments, although some would claim them to be edicts, from the
ECJ25 and ECHR26 have hammered home the supremacy of law and the
extent of legality and liability for aberrant governmental action to which even
claims of national security may be no answer.27 The EU/EC has done more
than anything else to foster the development of internationalism in a British
context by making what originated in international law a living law giving
individuals rights in our domestic legal system. And yet, we have recently
been reminded of what an emasculated court the ECJ is when it comes to
human rights in a manner which makes it difficult to identify it as the
constitutional ogre described by conservative lawyers and politicians (I use
conservative with a small c).28 The Court cannot give judgments about
human rights in cases which do not involve questions of Community law, and
this serves to remind us that, although the field of Community involvement is
ever widening, it also is limited.
Furthermore, as the eastward expansion of the Community now appears
imminent, it is important to recall that Member States can lose their rights
under the Treaty when they are found to be in breach of basic human rights
and democratic values. The body to make this judgment is to be the Council of
Ministers, not the ECJ, and no opportunity was taken at Amsterdam to give
the Community power to accede to the ECHR.29 The limitations of the
jurisdiction of the ECJ were also seen in the way that the new third pillar
power for Member States to make framework decisions legally binding was to
apply only between governments, with those decisions specifically being
declared not to be directly effective. Furthermore, the ECJ may give rulings
on these matters vis vis a Member State, but only where the Member State
has consented to such a ruling.
It is also revealing to note that the EU/EC is not built on a separation of
powers model as we know it. The European Parliament is weak, having no
oversight of the second and third pillars. Even after Maastricht, co-decision
and the Amsterdam revisions, the initiation of and control over legislation lies
with the Commission and Council. The Commission principally is a
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).
240
secretariat, but it is also a legislature as well as a law enforcer, guardian,

executive and legislative initiator/adviser. The judicial role is shared by the
Communitys courts and by those of the Member States. If we look to the EC
as a model of government for the future, then the rather sorry open
government experience of the Council and Commission, the ECJs somewhat
tame interpretation of the relevant provisions,30 the convoluted and highly
selective participation in the committee structure of the Commission and its
rule making functions, and the emergence of European agencies without any
appropriate accountability devices should give us cause for concern.31
Furthermore, the EC has probably done more to enhance executive power
in the UK than anything since the Bill of Rights 1689. Within 30 years of the
Glorious Revolution, Walpole had a more extensive network of spies in every
city and port in England than any king before him. Could it be that the
absence of a stronger practice of a separation of powers in the Community
assists those who wish to undermine the Communitys existence? The
Community has certainly not done enough to encourage greater participation
in its deliberations.32
The influence on our judges of international legal norms and European
jurisprudence, and particularly the spirit of adventure which they seem to
have encouraged, has been the subject of much debate.33 The Human Rights
Act appears set to become the most important influence on judicial
development since Coke sought to make the common law the sovereign
power in the land. Growing internationalism of British judges and ever more
sophisticated administrative law and protection of human rights have
introduced the phenomenon of the globe-trotting judge. As Hunt has said,
echoing Mike Taggart: The experience has led some to dream of the
emergence of an international common law of human rights.34 This is an
experience which the Pinochet judgments may have encouraged (see
Postscript, p 250, below).
Judges have shown a remarkable sensitivity to the protection of human
rights in the development of the common law and in the interpretation of
statute so as to bring it into conformity with protection of basic human rights,
except in the clearest of cases where Parliament has legislated against their
protection.
30 Especially in Netherlands v EU Council [1996] ECR I-2169.

31 On the committees and commitology, see Pedler and Schaefer (eds), Shaping European
Law and Policy and the House of Lords Paper 23 (199899), Delegation of Powers to the
Commission: Reforming Commitology; and, on the agencies, see Kreher (ed), The New
European Agencies.
32 Birkinshaw, Freedom of information and open government: the European
Community/Union dimension.
33 Nb, Hunt, Using Human Rights Law in English Courts.
34 Ibid, p 54.
241
As a result of the European experience, doctrines of proportionality,

legitimate expectation and equality have been openly used in British courts.
The doctrines have their provenance in decisions of the ECJ and the Court of
Human Rights and in turn derive from the case law of Member States where,
at least since the Second World War, there has been a stronger tradition of
control of government discretion by legal principles. Hesitation has been
shown in some cases by British judges who are anxious not to exploit their
judicial discretion excessively and thereby invade the executive sphere. It has
been denied that, when no question of European law is involved,
proportionality is a discrete basis of review existing in addition to Wednesbury
unreasonableness and irrationality. 35 The notion of proportionality
nevertheless exists in English law and its development will be encouraged
there by the incorporation of the ECHR under the Human Rights Act. In
applying the law developed by the ECHR, English judges will apply the case
law of the ECHR, which has long acknowledged proportionality. It will be
interesting to see what English or Scottish gloss domestic judges will give to
the development of human rights involving the ECHR.
Needless to say, not all the senior judiciary are enthusiastic advocates of
the new development of principles of judicial review. In R v Secretary of State
for the Home Department ex p Hargreaves,36 the Court of Appeal poured scorn
on Sedley Js attempts to introduce a workable doctrine of substantive
legitimate expectation in English law.37 In Hargreaves, under a compact
issued to them by the prison authorities, certain prisoners were informed of
their entitlement to home leave after a certain period. The Home Secretary, in
the exercise of his discretion, then reneged upon that compact. The court held
that the compact did not create a substantive legitimate expectation for the
prisoner which the Home Secretary would be forced to recognise. His
revocation was not Wednesbury unreasonable. The decision is not fatal to the
existence of the doctrine of substantive legitimate expectation, for which, in
fact, there is too much authority,38 but it is a warning that there is a significant
cohort of senior judges who are quick to remind themselves and others that
any suspicious sounding doctrines must not be allowed to subvert the
executive role and place the judge in the shoes of the Minister. I expect the
Human Rights Act to sharpen the conflict between executive discretion and
legal principle, especially in the areas of freedom of speech and the protection
of privacy, and also under Arts 5 and 6 and the fair trial provisions as they
operate in questioning those suspected of fraudulent activities.39 It is unlikely
that the jurisprudence of the ECHR will add a great deal to our law on
35
36
37
38
39
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.
242
administrative hearings and inquiries where, in spite of a considerable

advance in our sense of administrative justice, English judges have not
advanced any notion of participation that significantly affects the policy
making process. Their more lasting contribution has been to allow wider
access to the courts under an expanded interpretation of locus standi.
However, the Government was careful to provide only a narrow locus standi
when challenges are to be made under the Human Rights Act.
Judges may make declarations of incompatibility between domestic
statutes and the requirements of the ECHR but not overrule them. The
Government has promised that, where there is a conflict between the
provisions of a statute and the Human Rights Act, a fast track procedure will
be available to amend the offending legislation. No one can legally compel a
Minister to take action. This is a reaffirmation of Parliaments role as the
ultimate protector of our civil liberties and that the political will of the people
as represented in the legislative chamber is the appropriate source of
individual protection. But too often Parliament has been silent or cowed into
submission where unpopular causes are concerned. In adopting this model of
human rights protection, the Government has done a great deal to perpetuate
ancient notions of a balanced constitution which hold that the most important
decisions, including those on fundamental rights, must be the preserve of the
political levels of government. In spite of its great advances, then, human
rights jurisprudence in the UK remains an anomaly in the modern world.
WHAT SHOULD HAPPEN?

PROBLEMS AND PRESCRIPTIONS
If the practice of participation does gather momentum, what concomitant
development in the separation of powers is necessary? What I want is quite
simple: it is more openness and transparency and more effective redress of
grievances. Openness and transparency are necessary features of a more
participatory democracy, and this is as true of the European legal order as it is
of the domestic one. But they are not in themselves sufficient to sustain a
participatory culture. There has to be encouragement of citizen involvement.
This involves educating the public in the process of government and thereby
developing an awareness of where the public can make the most effective
contribution. No tier of government should be excluded from the
participatory culture, which therefore should also apply to local authorities,
regional planning authorities, devolved government, quangos and so on. One
of the interesting developments in the White Paper on Open Government is
the extension of duties to privatised utilities and private bodies (when they
are carrying out statutory duties) to provide documents to the public. The
duty will be extended to all those performing a service on behalf of a public
authority under contract or otherwise, but non-statutory self-regulation
would appear not to be included.
243
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.
As government moves more and more towards contract as a governing

device, a wide range of problems concerning participation and the separation
of powers present themselves. The New Labour Government seems set to
continue along the market driven lines of the previous Conservative
40 R v Parliamentary Commissioner for Administration ex p Balchin (1996) unreported, 25

October, per Sedley J.
41 R v Commissioner for Local Administration ex p Croydon LBC [1989] 1 All ER 1033.
244
administration and contract will be a central tool in its strategies of

government. Where government seeks to use contract to pursue its policies,
the traditional English doctrine of privity will ensure that wider interests than
those of the public body/contractor are not part of the communicative
framework and have no legal entitlement to be allowed in to the
relationship.42 Such relationships are often cocooned within the most secretive
and protective formulae of commercial confidentiality. Indeed, the
Government has spelt out in guidance documents for business that the latter
should adopt secrecy classifications not unlike its own and that basically
everything should be considered commercially confidential. As it once was
said by a justice of the US Supreme Court: Where everything is a secret,
nothing is a secret. Secrecy can become self-defeating. It would be hard to
create rights to be consulted about such arrangements and the contractual
relationship makes it inappropriate for challenge by way of judicial review,
although more recent decisions in the High Court may show signs of
flexibility here.43
This problem with contract illustrates how governing by novel means also
makes nonsense of the traditional doctrine of the separation of powers.
Usually, policy is formulated by the executive in secrecy until the executive
deems it appropriate to go to Parliament to announce the outcome of its
deliberations. The budgetary round is an outstanding example of such a
process. In government by contract, policy is formulated within the interstices
of commercial or contractual arrangements protected, as we have seen, by
exaggerated claims for commercial secrecy. Accordingly, the Comptroller and
Auditor General (CAG) assumes greater significance as an accountability
mechanism than political chambers or legal fora, except in those rare
circumstances when decisions on expenditure are ultra vires.44 The fact that
the New Labour Government has lifted some of the restrictions on the CAG
access to documents is a welcome development and will assist that body,
which, along with the Audit Commission in relation to local government, has
been centrally involved in holding the modern executive to account.
A further device used by governments to circumvent political and legal
control of their actions has been to resort to use of the specialised agency, and
such agencies have grown enormously. What makes it difficult to make such
agencies accountable is the absence of an appropriately drafted
Administrative Procedure Act. Without adequate legislation to provide for
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.
245
openness and transparency in the operations of these bodies, we have not

been able to fashion suitable forms of judicial or parliamentary control. We
lack the means to be sufficiently informed about those bodies activities and to
know the basis of their decisions. Lack of accountability in appointments has
been the subject of a good deal of comment in so far as those appointments
were seen to be unacceptable devices to extend political/ministerial patronage
in a manner more suitable to the erstwhile activities of the East India
Company. Lord Nolans suggestions on public appointments have led to
improvements and one expects Lord Neill his successor to continue in similar
vein. Details of public appointments are now placed on the internet. The
Government has published a consultation paper on quangos and it contains
many suggestions for enhanced openness. Nevertheless, is there not a need
for legislation in this area to cover appointments, open meetings, access to
documents, openness for advisory bodies, as well as regular reports of
activities and participation in the executive and rule making functions of such
bodies? The White Paper on Freedom of Information goes some of the way,
but a good deal more remains to be done.
The absence of appropriate legislation on administrative procedure is also
being felt in the European Union, where a new generation of administrative
agencies is taking on more and more administrative responsibility whilst
lacking coherent structure and lines of accountability. The resort of the
Commission to committees comprised of national, Community and private
organisational interests to assist in the formers rule making and regulatory
responsibilities has long been seen as yet another device to obscure the lines of
accountability of the European Communitys legislative process. As
elsewhere, the problems we face at home are felt more widely in Europe.
On the domestic front, devolution, which will involve a vertical separation
of powers as I explained above, will, the Secretary of State assures us, lead in
Scotlands case to more transparency and plans are under way for a regime of
freedom of information to cover Scottish bodies. In the referenda about
devolution, there were signs of the Labour Party machine silencing rebellious
Labour MPs in a manner which appeared to be the complete antithesis of
open debate. Here, as in other aspects of government, a party which has
promised constitutional reform, and which has quite impressively set about
that reform, has about it more than the suggestion of rigid, if not oppressive,
central control. With such a large majority, it will be difficult for government
control over Parliament to avoid being tinged with the folly of arrogance
and worse. Already there are signs that the Lord Chancellor, in spite of his
undoubted abilities, has let the dizzy grandeur of his office diminish the
wisdom of his public declarations. If we are to avoid the worst aspects of
arrogant government we need a strong independent Parliament and a brave
and independent judiciary. We are back to basics. These were the features of
246
the British constitution which Montesquieu believed to be sufficiently discrete

to justify him concluding that the separation of powers in a pristine sense
existed as a reality of English public life.45
What meaningfully could we hope for to bring about greater participation
in and by Parliament? If we provided for increased use of pre-legislative
hearings, reduction of constraints on civil servants and agency chiefs in giving
evidence, and provision of better and fuller information, there would be a
significant improvement. In his famous report on Matrix Churchill,46 Sir
Richard Scott suggested that a commissioner be appointed to adjudicate upon
refusals to answer questions in parliamentary hearings. Might this not be a
role for the Commissioner which has been suggested for freedom of
information? Could that Commissioner not also deal with failures by
government to respond to parliamentary questions and to force disclosure
when it would serve the greater public interest?
I have already discussed protection of human rights and specifically
considered the incorporation of the ECHR under the Human Rights Act. I
believe this measure will enrich our notion of fundamental rights and give
those rights the protection they deserve. They simply are too important to be
left to the vagaries of the political arena and particularly to party discipline
dictating the sense of the public interest. The lack of a means of legally
enforcing the ECHR domestically when the Government remains opposed
may perhaps be a signal of weakness and a cause for regret. There are also the
so called second generation human rights, the social and economic rights
(which are so prominent in the revised European Union Treaty), as well as the
third generation concerning environmental protection and rights to greater
participation in decision making and collective welfare. In the UK, the
contribution of the judiciary to the development of these rights has not been
illuminating or visionary, though its contribution to the protection of
individual primary human rights clearly has encouraged the development of
a human rights culture.47
Turning to what are often termed surrogate political processes, one is
obliged to observe that the record of the courts when they have been asked to
widen participatory exercises, obtain better reasoning for decisions on
environmental matters, or simply to extract more information about the
decision making process has not been so encouraging. Indeed, leading jurists
have questioned whether it is the judiciarys business to make such processes
45 Montesquieu, The Spirit of the Laws, bk 11, ch 6.

46 Scott Committee, Report of the Inquiry into the Export of Defence Equipment and Dual-use
Goods to Iraq and Related Prosecutions. See Birkinshaw, Government and the end of its
tether; and Scott, The acceptable and unacceptable uses of public interest immunity,
p 440, on Ministers and the provision of information to Parliament.
47 Although there are inconsistencies. See Abdi v Secretary of State for the Home Department
[1996] 1 All ER 641 (HL); and R v Secretary of State for the Home Department ex p Simms
[1998] 2 All ER 491.
247
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
Administrative Review Council (ARC) respectively. Both have provided

expert guidance and research for government, the judiciary and the legislature
in their respective countries. ACUS was disbanded for disgraceful reasons, the
victim of internecine governmental jealousies.52 The ARC still manages to
survive.
But administrative should perhaps be interpreted broadly. We have
legislators who are largely ignorant of the judicial and the administrative
processes, and judges who are ignorant of the legislative process53 and too
many of whom are mostly not well informed about the executive and
administrative processes. We have an executive that paradoxically is
simultaneously fearful and contemptuous of both legislature and judiciary.54
Is a body needed for administrative justice in the round which will oversee
and advise especially on human rights developments and comparative
approaches? What relationship would such a body have with the Judicial
Studies Board? The Board intends to undertake responsibility for race and
gender awareness among the judiciary. Do our judges (and our senior civil
servants) require instruction in their social awareness of lower socioeconomic groups and their problems? Judicial aloofness helps generate the
widespread misconception of the judicial role and judicial work.55 I stated
earlier that judges are not card carrying class warriors suppressing the claims
of unpopular or alienated groups. But in an elitist framework they are a
particularly exclusive band of brethren. They are possibly the least dangerous
branch of government, but anecdotal evidence of racial and sexist bigotry, and
press reports likewise, are common. I certainly have witnessed amazing
ignorance of ombudsman schemes by judges and this ignorance is probably
widely, not universally, repeated in terms of ignorance of other mechanisms
for the resolution of disputes.
While the three branches of government must maintain their mutual
independence, the separation of powers does not dictate that they remain
ignorant of each others work, or in the case of judges, the work of others that
52 Edles, Lessons from the Administrative Conference of the USA.

53 This is so even after Pepper v Hart [1993] 1 All ER 42 (HL) and the judges abandonment
of their self-denying ordinance not to refer to Hansard to interpret unclear clauses in
statutes.
54 As was evident in the first (1987) edition of The Judge Over Your Shoulder: Judicial Review
of Administrative Decisions, a document prepared by the Treasuary Solicitors
Department for internal circulation within the senior Civil Service which was not
intended to be available to the public. The second edition of May 1995 was less caustic.
Note Lord Howes allegation that Scott was naive to think judicial techniques can be
applied to governmental policy formulation in the course of pouring scorn on Scotts
procedures when criticism of individuals was possibly involved. Lord Howe,
Procedure at the Scott Inquiry. There also have been frequent political attacks on the
claimed inconsistency of judges in judicial review proceedings.
55 Hough and Roberts, Attitudes to Punishment 1996.
249
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.
250
CHAPTER 14
THE HUMAN RIGHTS ACT:

AN ASSESSMENT OF THE ACT DESIGNED TO
INCORPORATE THE EUROPEAN CONVENTION
ON HUMAN RIGHTS INTO DOMESTIC LAW
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-
Human Rights Act 1998, ch 42.

251
discrimination provisions too narrow. Ultimately, it is no substitute for a

home-grown, or indigenous, Bill of Rights. However, the Government
appears to have deferred the idea of an indigenous Bill of Rights. In the 1993
Labour Party policy statement, the incorporation of the ECHR was described
as only the first step towards such a Bill of Rights. Liberty is disappointed that
the new Act does not set up a mechanism to consult on and develop this.
Incorporation of the ECHR is a necessary but insufficient first step. The
ECHR is some 50 years old, and its origins predate even the establishment of
the Council of Europe. Stronger rights are contained in other, more modern,
human rights instruments such as the UN International Covenant on Civil
and Political Rights (ICCPR), and Libertys own Bill of Rights, drafted in 1991
and updated in 1994, which draws on the ICCPR and other UN conventions
and regional human rights instruments, as well as the ECHR itself.
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.
Deportation and extradition

The ECHR provides little assistance to those held in detention pending
deportation or extradition because Art 5(1)(f) allows detention in such
circumstances, and there is, on the face 2 of it, no limit to the length of
detention or any restriction on the legal justification for such a detention.
Furthermore, the rights of aliens are further and specifically restricted by Art
16. The only restrictions on removal from a country are imposed by other
articles such as the right to family life or to freedom from torture. Even in
private and family life cases, the Courts decisions are particularly restrictive
and if, for example, the private and family life can take place in the country
to which the person is being deported, then there is no breach of Art 8. The
ECHR does not include the right to enter a country either as a resident,
national or asylum seeker.
Some of these defects could be cured by the adoption of Protocol 4 to the
ECHR and Liberty is disappointed to see that this has been ruled out.
Nevertheless, we are pleased to see that the White Paper proposed that
Protocol 7 to the ECHR will ratified by the Government.
2
But, see Chahal v UK (1977) 23 EHRR 413.

252
The Human Rights Act: An Assessment
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.
253
Detention on public health grounds

Article 5(1)(e) allows the detention of persons for the prevention of the
spreading of infectious diseases alcoholics or drug addicts or vagrants.
This is now an out of date limitation that has no place in a modern Bill of
Rights.
Limitations on privacy, freedom of religion and freedom of

expression and assembly
The rights to privacy and to freedom of religion, expression and assembly are
all subject to similar limitations in the ECHR. These are all contained in the
second part of the relevant article, Art 8(2), which states:
There shall be no interference by a public authority with the exercise of this
right except such as in accordance with the law and is necessary in a
democratic society in the interests of national security, public safety or the
economic well being of the country, for the prevention of disorder or crime, for
the protection of health or morals, or for the protection of the rights and
freedoms of others.
Whilst significant numbers of cases against the UK in Strasbourg have

succeeded because the interference with the right was not in accordance with
the law or the interference was not proportionate not necessary in a
democratic society few have succeeded because the purported aim of the
interference was outside of the range provided for in the second part of the
article. There is not space here to deal with all of the difficulties that the
expression national security creates for the courts, but it is arguable that the
expression is too vague to be contained in a Bill of Rights.
Similarly, the expression public safety makes too wide an exception and
Liberty has substituted imminent physical harm in its Bill of Rights.
Interestingly, the economic well being of the country features only as a
limitation in Art 8 and is far too vague to be a justifiable restriction.
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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The Human Rights Act and the current law

Liberty welcomes the fact that the Act will ensure that the common law is
subject to the ECHR and that secondary legislation will be subject to the rights
set out in the ECHR. However, the proposals that delegated legislation can be
protected from such challenge may create problems if used extensively or
inappropriately by government.
The most difficult issue when considering this Act is the status that the
ECHR should have in the new constitutional order. Liberty argued that, when
the courts have to resolve a conflict between the rights set out in the ECHR
and any other legislation, the ECHR which expresses the fundamental
values of liberal democracy should be given precedence. Anxieties about
parliamentary sovereignty, and the possibility of the judges being involved in
political decisions, have led to a weaker model.
The Governments model will mean that where rights and statute conflict,
statute will always prevail. This will mean that the individual who is able to
show to the satisfaction of the domestic court that his or her ECHR rights have
been violated will, nevertheless, lose the case. The loser will then either have
to petition the European Commission in Strasbourg for redress, or wait for
Parliament to change the law. The loser might be able to obtain
compensation, but only several years later. They will not be able to obtain any
other remedy, such as an injunction, or any of the usual remedies in judicial
review, such as certiorari, prohibition, mandamus or a declaration. These may
often be the only true remedy for a person who has suffered a violation of the
ECHR.
If the court is unable to construe a statute in a way which is compatible
with the ECHR, the Act states that the courts will be able expose the problem
by making a declaration that there has been a violation. This is an important
improvement over some weaker models of incorporation, and, clearly, there
will be strong pressure on the Government to change the law where such a
declaration is made. Significantly, the Act provides that, although the court
will not be able to set aside the statute, there will be a fast track procedure
which will allow Parliament to amend the offending law relatively quickly to
bring it into line with human rights principles.
Liberty welcomes these improvements on the basic approach. However,
problems arise when one starts to consider how such mechanisms might
operate under a government which has no commitment to human rights.
Governments have a habit of ignoring individual rights when there is a need
to be seen to be tough on crime, or where they perceive that public or media
opinion, or other pressures, would not be in their favour, particularly in the
run up to a general election. It is precisely this that human rights law is
designed to prevent. Human rights are neither a reward for good behaviour
255
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.
Official Secrets Act 1989

Imagine that a ex-member of MI5, concerned about unnecessary invasions of
privacy by the Secret Service, believes that it is right to expose the details of
this malpractice. This is a criminal offence under the Official Secrets Act 1989,
and remains an offence however much the revelations are in the public
interest. Article 10 of the ECHR provides a right of freedom of expression. If
the ECHR is incorporated as the Government intends, that right will not be
available as a defence because the statute, the Official Secrets Act, does not
provide such a defence. If the ECHR is to make a difference in this case, the
MI5 officer and the journalists that aided and abetted her or him need to
256
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.
Criminal Justice and Public Order Act 1994

The Criminal Justice and Public Order Act 1994 completely removed the right
to bail for those charged with very serious offences who already have a
conviction for a similar offence. This denial of bail applies regardless of the
circumstances of the person and however weak the evidence is. This raised
serious questions about the presumption of innocence and the right to liberty
and is presently being challenged in the Court in Strasbourg by a person who
was denied bail and spent time on remand in prison before being acquitted.
The best model would allow a court to grant bail if this were necessary to
avoid violating the defendants human rights, despite the technical restriction
in the 1994 Act. Under the Governments proposed model, the court would be
powerless to do any more than decide that the 1994 Act breached the
individuals human rights and the person would have to remain in custody.
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
257
legislation is incompatible with ECHR rights, or that a provision of

subordinate legislation is incompatible and the primary legislation under
which it was made prevents the removal of that incompatibility. It also
provides that such a declaration does not affect the validity, continuing
operation or enforcement of the provision in respect of which it was given.
Section 7 of the Act provides that a person who claims that a public authority
has acted (or proposes to act) in a way which is unlawful, because
incompatible with ECHR rights, may bring proceedings against that authority
under the Act, or may rely on ECHR rights in any legal proceedings. Such a
person may only bring proceedings or rely on ECHR rights if he or she is (or
would be) a victim of the unlawful act.
Section 10 enables the amendment by order of a provision of legislation
which has been declared incompatible with ECHR rights or which, in view of
a finding of the European Court of Human Rights, appears to a Minister of the
Crown to be incompatible, so as to remove the incompatibility or possible
incompatibility. The declaration procedure is an important new procedure
which is to be welcomed.
However, Liberty is concerned to explore what happens to the person
concerned in such a case. An example may be helpful. The Criminal Justice
and Public Order Act 1994 created a number of new public order offences, one
of which made it an offence to trespass on land with the intent of obstructing
the lawful activities of others. Imagine a completely peaceful protest about the
human rights record of Nigeria, carried out on the premises of an oil
company. Assume that the protest had the effect of making the employees of
the company late for work. This would be a criminal offence, but a conviction
of a person for such a peaceful protest might well violate the rights of freedom
of expression and assembly in the ECHR. If the facts were proved and there
was no defence of reasonable excuse, the magistrates would be bound to
convict. Although in most cases the individual would be unlikely to receive a
custodial sentence, this cannot be ruled out. And in addition to having a
criminal record, the individual would also have to pay costs. Liberty would
suggest that powers should exist to provide the executive to quash such a
conviction and make an ex gratia payment to the person concerned.
The alternative would be for the person concerned to take proceedings in
Strasbourg. This would not only entail considerable costs and delay for the
individual, but also for government lawyers, with a corresponding increase in
costs to the taxpayer.
If the higher courts do not have the power to give remedies or damages in
such circumstances, this may result in legal aid not being available. Legal aid
is not granted for litigation which will not provide an actual benefit to the
person concerned, or which is academic.
The final problem for the Governments proposals is what happens the
day after the courts have declared that a particular rule in statute remains the
258
law but, at least in some circumstances, violates human rights law. In a

controversial or difficult case, perhaps involving sex offenders, the
Government may take some time to change the law. In fact, a late amendment
to the Act means that the Government can only use the fast track procedure
where there are compelling reasons to do so. In the interim, there is a legal
anomaly, the solution to which is difficult to discern. The police could
continue to enforce the law as set out in the statute, but each time they did so
they would violate the accuseds human rights, creating further opportunities
for litigation and costs in this country and in Strasbourg.
The power to make a declaration of incompatibility is also restricted to
the higher courts. Liberty has no difficulty in principle with such a restriction,
providing that matters dealt with in the lower courts and tribunals can be
referred to the higher courts on appeal or by way of judicial review. An
analysis of all of the processes by which issues in the lower courts reach the
higher courts is impossible in this chapter.
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
259
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.
CAUSES OF ACTION, COURTS AND TRIBUNALS

This section sets out the categories of legal proceedings, and the courts and
tribunals, in which the ECHR may be used.
The Act will make it unlawful for a public authority to act in a way which is
incompatible with one or more ECHR rights. There are two exceptions to this
where the public authority could not have acted differently as a result of a
provision of primary legislation, or where the public authority was acting to
give effect to provisions of primary legislation (or made under primary
legislation) which cannot be read or given effect in a way compatible with the
ECHR.
The Act provides that a person who claims that a public authority has
acted unlawfully may bring proceedings under the Human Rights Act in the
appropriate court or tribunal, or they may rely on the ECHR in any legal
proceedings (that is, any proceedings brought by, or at the instigation of, a
public authority, and any appeal proceedings) provided that they are, or would
be, a victim of the unlawful act.
A victim is defined in the same way as a victim is defined under the
ECHR (Art 34). The ECHR provides that: the Court may receive applications
from any person, non-governmental organisation or group of individuals
claiming to be the victim of a violation [of the ECHR]. This will include
individuals, companies and unincorporated associations.
There is extensive case law under the ECHR as to who can be regarded as
a victim. In many cases this will be clear. For example, there will be no doubt
that a person who has been arrested and detained by the police, or who is the
subject of a deportation order, may claim to be a victim of a violation of their
ECHR rights. However, there are a number of situations where the position is
less clear. For example, it is not possible to bring an ECHR case about a purely
hypothetical situation, but it is possible to be considered a victim if a person
is at risk of being directly affected by legislation or administrative practices
which breach the ECHR (such as the applicants in cases concerning the
Northern Ireland legislation which prohibited homosexual acts). A second
example is that a person who is indirectly the victim of an act or decision
which breaches ECHR rights may also claim to be a victim. Cases are
frequently taken to Strasbourg by the relatives of a person who has been
excluded or deported from their country of residence. A third example is that
the heirs of an applicant who has died may continue the proceedings in
Strasbourg.
260
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
R v Secretary of State for Social Services ex p CPAG [1990] 2 QB 540.

R v Her Majestys Inspectorate on Pollution ex p Greenpeace (No 2) [1994] 4 All ER 329.
R v Secretary of State for Foreign and Commonwealth Affairs ex p World Development
Movement [1995] 1 WLR 386.
R v Secretary of State for Employment ex p Equal Opportunities Commission [1994] 2 WLR
409.
Labour Party, Bringing Rights Home: Labours Plans to Incorporate the European Convention
on Human Rights into UK Law, para 4.
261
for one effect of the incorporation of the ECHR to be a serious restriction on

access to justice in the way we have outlined above.
The effect of the Act is that the ECHR may be cited in any proceedings
relating to a public authority. Therefore, the ECHR could be invoked in
proceedings for an established tort, such as negligence, breach of confidence
or false imprisonment. When the violation of ECHR rights complained of does
not amount to an established cause of action, then proceedings could be
brought for a breach of the Human Rights Act itself. An example of the latter
situation is a case concerning privacy. There is currently no statutory or
common law right of privacy, but, in this case, proceedings could be brought
under the Act alleging a violation of Art 8 of the ECHR. The ECHR could also
be invoked as a defence in criminal proceedings, or in other proceedings such
as judicial review, industrial tribunal proceedings or breach of contract (and
as a defence and/or counterclaim in such proceedings). Liberty believes that
this broad approach is the right one to take.
The Act goes further than some commentators had expected on the
question of remedies, by leaving it to the discretion of the courts. This
principle is supported by Liberty. It means, for example, that (depending
upon the jurisdiction and powers of the court in question) damages and
injunctions will be available in civil actions. In judicial review, the usual
orders will be available: certiorari (an order quashing a decision), prohibition
(an order stopping a particular act), mandamus (an order to compel a
particular act to be carried out), injunction, declaration and damages.
Damages are, however, restricted by the Act, which places a number of
qualifications on the quantum of the damages which can be awarded as a
remedy, and stipulates that such damages can be awarded only by a court
which explicitly has the power to do so or has the power to order the payment
of compensation in civil proceedings. Furthermore, damages will not be
awarded unless a court is satisfied that is it necessary to provide just
satisfaction, having taken into account any other relief granted by any court,
and the consequences of any decisions taken by any court relating to the act
complained of. The Act requires the court to take into account the principles
applied by the European Court in deciding both whether to award damages
and the quantum of award. Finally, damages cannot be awarded under the
Act in respect of any act of a court. A challenge to an act of a court may only
be made by way of an appeal, or by judicial review.
The test of just satisfaction is taken from Art 41 (under Protocol 11, which
came into force on 1 November 1998) of the ECHR, under which the
Strasbourg Court may award compensation to successful applicants. The
object of awarding compensation in Strasbourg is to put the successful
applicant, so far as is possible, in the position he or she would have been in
had the violation not occurred. Such compensation may include both
pecuniary loss (quantifiable financial loss) and non-pecuniary loss (such as
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.
OTHER SUBSTANTIVE RIGHTS

Liberty is also concerned that Art 13 of the ECHR has not been incorporated.
Article 13 is an important Article which ensures that for any violation there
are effective remedies. It states:
Everyone whose rights and freedoms set forth in this Convention are violated
shall have an effective remedy before a national authority notwithstanding that
the violation has been committed by persons acting in an official capacity.
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.
263
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.
It might have been worthwhile to incorporate a modified version of this as a

preamble to the Act as a whole.
There are also a number of additional protocols to ECHR which contain
substantive rights. Protocols 1 and 6 are incorporated by the Act. Protocol 4
contains the right of freedom from imprisonment for breach of contract, the
right of freedom of movement within and from and to the country. Protocol 7
gives rights of due process to aliens and those subject to deportation
procedures. It also includes the right to appeal in criminal cases,
compensation for miscarriages of justice, a ban on double jeopardy and
equality between spouses. There are also other protocols being drafted by the
Council of Europe which, if ratified and incorporated by the UK, would
substantially improve UK citizens rights.10
The Government has not included these other Protocols in the list to be
incorporated, although the White Paper proposes that the rights contained in
Protocol 7 will be ratified and incorporated after there have been adjustments
to domestic law to bring it in line with those rights.
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
international standards. The result of that assessment would appear on the

face of that legislation, thereby alerting MPs and others to the potential
consequences. Where the Minister accepts that a human rights issue is raised,
then he or she must give reasons for pursuing the policy. This information
should be made available when the Bill or other legislation is first published.
If human rights impact assessments are successfully introduced, it will be
this system more than any other which nurtures a culture of rights and
responsibilities, not only within Parliament and the judiciary, but also the
Executive and Whitehall.
Bills and other legislation which are identified as raising human rights
concerns, or in regard of which the Government chooses not to issue a
statement of compatibility, should be required to undergo more stringent
scrutiny, including review by a Special Standing Committee, members of
which are able to call evidence and cross-examine witnesses. When there is
dispute as to a Bills human rights impact, the dispute should ultimately be
decided by an authorised person outside of the party political process, such as
Speakers Counsel.
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.
265
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.
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CHAPTER 15
THE CASE FOR SOCIAL AND

ECONOMIC RIGHTS
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.
POSITIVE AND NEGATIVE RIGHTS?

The difference between the two types of rights is often expressed in terms of
negative and positive. Civil and political rights, the first generation rights,
1
Craven, The International Covenant on Economic, Social and Political Rights, p 8.

267
are thought of as negative rights based on the principle of minimal

interference. They set a minimum standard for the relationship between the
ruler and the ruled, and are concerned with protecting citizens from tyranny
by the ruler. They are a method of checking the political power of the
majority, and removing some matters from the ambit of parliamentary politics
so that certain interests will not be sacrificed at the whim of majoritarian
preferences.2 Social and economic rights, on the other hand, are seen as
positive in the sense that, rather than requiring the State to refrain from
interfering with the exercise of certain rights by individuals, the State is
actively to facilitate access and provide certain goods and services. In other
words, the State must take reasonable and progressive measures to secure
these rights.
In most countries and in international law, generally, a distinction is
drawn between civil and political rights, which are the traditional subject of
human rights doctrine, and social and economic rights. The latter are
perceived to be a more recent phenomenon, and considered to be different
from the former as they impose a positive administrative duty and, more
importantly, a financial burden on the part of the State. So, while a decent
standard of living for all is a proper aim of social policy, it could be argued
that the delivery of this depends more on economic prosperity than
legislation.3 This makes it difficult to insist upon the imposition of social and
economic duties towards its citizens on the State. Even if formally recognised,
these rights are, in practice, difficult actually to deliver. Certainly, in
international law, the enforceability of socio-economic obligations cannot be
divorced from economic realities and politics.4
This is not to say that there are no international obligations in relation to
social and economic rights,5 and, indeed, one of the principal aims of the
Charter of the United Nations, as expressed in its preamble, is the promotion
of the economic and social advancement of all peoples. Despite this, the
Universal Declaration of Human Rights adopted on 10 December 1948 by the
General Assembly of the United Nations devotes the first 21 Articles to
traditional political and civil rights. It is Arts 2225 which provide for social
and economic rights, including the right to social security, the right to work,
the right to rest and leisure, and the right to a standard of living adequate for
health and well being. Two separate Covenants, based on the Declaration,
were drafted by the Human Rights Commission, one for civil and political
rights, and the other for economic, social and cultural rights. This was done on
the basis that the latter, involving as they did a financial imposition on
governments, could not be drafted in the same way as the traditional rights,
2
3
4
5
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
The Case for Social and Economic Rights
which essentially guarantee the individuals freedom and non-interference by

the Government.6
It has, however, been suggested that the distinction between the two
categories of rights, and indeed, the reasons for the two Covenants, is a
function of the ideological conflict between East and West during the drafting
of the Covenants. The communist states championed the cause of social,
economic and cultural rights, which they associated with the aims of a
socialist society. It was the Western states which asserted the priority of civil
and political rights as the foundation of liberty and democracy in the free
world.7 As a result of this, two separate Conventions were drafted, which
reflected the perception that the two categories of rights were different in
nature, origin and significance.8 This has since been used as evidence of the
inherent opposition of the two categories of rights, and has contributed to the
idea that socio-economic rights are in reality a distinct and separate group of
human rights.9 More seriously, however, it has contributed to the idea that
these rights are of a lower order than civil and political rights, and has led
Craven to the conclusion that, as a matter of international practice, they are
largely ignored. Certainly, it appears that the international community treats
breaches of civil and political rights as though they were far more serious than
the direct denial of social, economic and cultural rights.10
The differences between the two types of rights have been seen to be so
fundamental that the validity of the second generation rights have been
called into question. Hayek, for example, argues that rights are concerned
with the protection of individual autonomy. He differentiates between being
free, that is not being constrained by intentional coercion, and being unable,
and argues that it is only civil and political rights that relate to being free,
and, thus, to individual autonomy. This guarantee of freedom requires the
absence of intentional restraint and coercion, and this is protected by negative
rights. Freedom and autonomy are not concerned with rights to resources.11
Such scepticism about the validity of socio-economic rights has been said
to rest on two basic assertions.12 First, human rights are said to derive from a
natural law tradition which is concerned with individualism, personal
autonomy and freedom from interference by the State. This provides
justification for a limited range of civil and political rights, but not for social
and economic rights, which have a different, even a conflicting, theoretical
6
7
8
9
10
11
12
Dowald-Beck, A duty in international law to provide for basic needs, p 47.

Craven, The International Covenant on Economic, Social and Political Rights, pp 89.
Ibid, p 7.
Ibid, p 9.
Ibid, p 9.
Hayek, The Constitution of Liberty, p 9.
Ibid, Craven, p 10.
269
rationale.13 These latter rights have, indeed, been perceived by some as

involving an unjustified interference with personal liberty because they
require some redistribution of wealth and positive interference by the State.14
The second reason for scepticism is because it is claimed that social and
economic rights are not universal and absolute, characteristics which are seen
as essential for human rights, and this has debilitated, muddied and
obscured the concept of human rights.15
Plant has argued that there is no categorical difference between these two
kinds of rights, and that the philosophical case for social rights is no less
plausible than the case for civil liberties. He takes issue with the arguments in
which the New Right has attacked the idea of social and economic rights.16
For the New Right, social and economic rights are not proper rights because
there are no corresponding duties attached to them. Civil rights, being
negative and, in essence, demanding freedom from interference, do not
present a resource problem for the State. On the other hand, social and
economic rights imply a commitment to expending resources, and thus
involve costs. If the resources are not available, the rights cannot be met. The
argument is that, as these rights have to be rationed, they cannot be rights. As
there cannot be a legally enforceable right to a scarce resource, and as needs
are open-ended without clear limit, these rights are not justiciable, and,
therefore, cannot be proper rights.
Another argument of the New Right is that enforcement of these rights
would present problems because there is no clear agreement on how to
distribute scarce resources. Such resources could be distributed on the basis of
merit, or need, or desert, or entitlement, or equality. Distribution which was
not based on the market would have to depend on professional judgment,
and this would empower professionals and bureaucrats in the public sector.
In addition, if provision of social resources is seen in terms of rights, public
services could not be privatised because no market could possibly guarantee
delivering these basic resources as rights of citizenship. Plants response to
these arguments is that they reflect a view about the nature of citizenship
which is only seen in civil and political terms. He argues that citizenship can
also be seen in social and economic terms, and that political and civil
freedoms would remain abstractions unless people have the social and
economic resources to be independent citizens.17
As for the argument that civil and political rights do not involve resources,
he argues18 that the enforcement of civil rights has resource implications as
13
14
15
16
17
18
Minogue, The history of the idea of human rights, pp 1314.

Nozick, Anarchy, the State and Utopia, pp 16774.
Cranston, Human rights real and supposed, p 43.
Plant, Citizenship, rights and welfare, pp 1820.
Ibid, p 21.
Ibid, pp 2122.
270
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
25
Fried, Right and Wrong, p 32.

Sadurski, Economic rights and basic needs, p 54.
Ibid, p 55.
Laws, The constitution, morals and rights, p 630.
Irvine, Response to Sir John Laws, p 638.
Ibid, Sadurski, p 58.
Ibid, Fried, p 47.
271
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.
WHY HAVE SOCIO-ECONOMIC RIGHTS?

The argument for socio-economic rights can be based on one of social justice.
Gewirth has noted that economic justice is one of the most controversial areas
in the whole range of moral philosophy.27 To say that the State has a duty to
refrain from interfering with the exercise of rights by individuals is one thing.
It is of a different order to argue that the State has actively to facilitate access
to social and economic rights, which involves the State implementing
reasonable and progressive measures to secure them. The difficulty is that,
even if the rightness of such a course of action is conceded on the basis of
social justice, the concept of justice itself is not unproblematic.
Several classical statements about the nature of justice exist. For John
Rawls, justice meant that All social values liberty and opportunity, income
and wealth, and the basis of self-respect are to be equally distributed unless
an unequal distribution of any, or all of these values is to everyones
advantage.28 According to Dworkin, justice involves individuals having a
right to equal concern and respect.29 Tunc did not try to define justice, noting
that Aristotle failed to do so, and that some authors feel that no single theory
can account for the complexity and diversity of the concept. He does,
however, believe that there is general agreement that equality is an important
ingredient of justice.30 As for economic justice, while at a basic level it may be
characterised as being concerned with who should get what and why,31
Gewirth has noted that six different ways of distributing social and economic
goods have been identified: to each according to his virtue, effort,
contribution, agreements, needs and societys rules. Each of these has different
26
27
28
29
30
31
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
38
Gewirth, Economic justice: concepts and criteria, p 12.

Lewis and Seneviratne, A Social Charter for Britain, p 31.
Ibid, p 53.
Galbraith, The good society considered: the economic dimension, p 3.
Plant, Needs, agency and rights, p 22.
Ibid, pp 2829.
Sadurski, Economic rights and basic needs, p 50.
273
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
Shue, Basic Rights, pp 2425.

Gerwirth, Human Rights, p 7.
Ibid, p 22.
Gerwirth, Economic rights.
274
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
49
Gerwirth, Economic rights, p 4.

Ibid, p 4.
Ibid, p 23.
Ranson and Stewart, Citizenship and government: the challenge for management in
the public domain, p 8.
275
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
50 Gerwirth, Economic justice: concepts and criteria, p 29.

51 Hutton, The State Were In.
276
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
Laws, Law and democracy, p 72.

Cockrell, The South African Bill of Rights and the duck/rabbit, p 529.
Minogue, Whats wrong with rights?, p 210.
The Labour Government is in the process of relaunching the Citizens Charter.
Coote (ed), The Welfare of Citizens, p 3.
277
consumers, 57 as the citizen is both an individual and a member of a

collectivity.58 Citizenship, therefore, embodies wider concerns than consumer
rights, and rights which are expressed as an aspect of consumerism are failing
to address many of the issues.
For Coote, these divergent views about how welfare services should be
delivered represent a fundamental conflict between left and right about what
a welfare system is for and what it should seek to achieve. This reflects
different ideas about equality, individual empowerment and collective action.
The left has traditionally supported policies which aimed at promoting
equality of opportunity, in the broad sense of providing everyone with an
equal chance in life. Welfare policies should, therefore, aim to minimise, and
compensate for, disadvantages, in order to equalise the life chances of all. This
is linked to the idea of individual empowerment being implied in citizenship,
which entails being able to participate fully in society, to enjoy its fruits, and to
fulfil ones own potential. The conclusion of this is that all citizens must have
equal access to education and healthcare, and other services which are
necessary to give them an equal chance in life. This model is not built upon
philanthropy, but on equal citizenship as a means of self-determination.59 For
the Right, on the other hand, the rights of citizens are little more than
individuals having the right to make certain transactions; to receive a service
and to complain and seek redress.60
Plant sees the conflict between left and right in terms of a different
approach to empowerment. For the right, the only method of empowerment is
as a consumer in the market place. For the left, empowerment is seen in terms
of regulating or democratising the delivery of public services in order to curb
the power of professionals. This may be achieved by making professional
power more accountable to a higher bureaucracy, such as an inspectorate or
regulatory body, or more accountable to democratic bodies.61 For Plant, the
idea of rights presents a new way of empowering citizens in addition to these
two.62 Certainly, it is no longer an article of faith on the left that direct state
provision of services is the best guarantee of quality, and there is perhaps
some agreement across the political spectrum that services should be more
flexible to meet individual needs. In addition, it is accepted that appropriate
standards for services should be set, and that where there is a grievance, there
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
should be appropriate redress. Social rights are, thus, seen as a way of

enhancing the quality of citizenship.63
The rationale for socio-economic rights is, therefore, that social and
economic deprivation effectively excludes citizens from participation in the
democratic process. The right to well being is as much a basic human right as
is the right to freedom, since without it one cannot participate fully in society.
Social justice demands that all citizens should have the opportunity to share in
the worlds resources. Such rights are part of our international obligations,
including the Universal Declaration of Human Rights.
Rights discourse is an appropriate mechanism for achieving social and
economic justice because the language of rights has become a powerful
political force. Ideas of collectivism and social justice seem now to be
unfashionable,64 but that is one of the reasons why the method of achieving
social justice and economic and social well being has to be expressed in the
language of rights. It is the language which is now used by all political parties,
where individual choice has replaced collective responsibility. The new
Labour Government is now committed to the market, private enterprise and
choice. Given that approach, the language of rights is appropriate to the
achievement of economic and social well being. It is now accepted that
freedom of choice is a value to be pursued, but the argument for socioeconomic rights is that, in order to fully participate in society and exercise
ones freedom of choice, one must have access to economic resources. Indeed,
one has a right, as a citizen, to these resources. Individuals cannot be
empowered without access to resources. In the present political climate it may
not be possible to achieve any progress in this area, unless these values are
conceptualised as rights, so the contemporary rhetoric of rights can be used to
achieve this objective. Rights discourse thus has symbolic value.
There are some, however, who are wary of adopting the discourse of
rights as a method of achieving some redistribution of resources. If one
accepts that a right is something to be asserted against someone else,65 then
it could be argued that the language of rights may not be appropriate in the
socio-economic context. Rather than resulting in the collective good and a
sense of community, if the language of rights becomes a systematic feature of
a prevailing social philosophy, it could tend to give rise to a community of
selfish individuals, and therefore no community.66 In a similar vein, Irvine
notes that a society which considers its values to be defined by its rights,
rather than its rights defined by its values, is a society that is likely to fail to
recognise the value of community and, in particular, the role of individual
63
64
65
66
Plant, Citizenship, rights and welfare, p 29.

Cotterrell and Bercusson, Law, democracy and social justice, p 1.
Ibid, p 624.
279
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
Irvine, Response to Sir John Laws, pp 63637.

Minogue, Whats wrong with rights?, p 220.
Ison, A constitutional Bill of Rights: the Canadian experience, p 499.
Ibid, p 499.
Ibid, Minogue.
280
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
72 Laws, The constitution, morals and rights.

73 Fuller, The forms and limits of adjudication, p 359.
74 Stovin v Wise (Norfolk County Council, third party) [1996] 3 WLR 388, p 419, per Lord
Hoffman.
75 Convery, Public or private? Duty of care in a statutory framework: Stovin v Wise in the
House of Lords, p 562.
76 Ibid, p 571.
281
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.
ENFORCEMENT OF SOCIO-ECONOMIC RIGHTS

There can be no doubt that social and economic rights may place demands on
resources, and that fully recognising such rights is a matter of making a policy
which requires progressive implementation. However, the fact that they are
not of the same order as the first generation rights does not mean that they
cannot be rights, and one of the main issues facing those who wish to give
these rights the same kind of status in the constitution as civil and political
77 R v Chief Constable of Sussex ex p International Traders Ferry Ltd [1997] 2 All ER 65.
78 [1948] 1 KB 223
79 Barnard and Hare, The right to protest and the right to export: police discretion and the
free movement of goods, p 399.
80 R v Cambridgeshire Health Authority ex p B [1995] 1 WLR 898, p 906.
81 Chu, The human right to adequate housing, p 89.
82 Tunc, The quest for justice, p 335.
282
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
Irvine, Response to Sir John Laws, p 638.

Plant, Citizenship, rights and welfare, p 26.
Beatty, The Canadian Charter of Rights: lessons and laments, p 482.
Ibid, p 498.
283
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.
284
Even when the parameters have been set, implementation or enforcement

of the right could be achieved in a number of ways. It could, for example,
involve the right to have ones name placed on the housing waiting list
administered by a local authority, and the right to fair administration of that
list. It could include landlord and tenant legislation, incorporating security of
tenure. 92 It could involve a duty on local authorities to provide
accommodation for those who are (unintentionally) homeless. All these are
mechanisms for establishing the human right to housing. However, the
granting of priority rights to some prospective tenants affects those on the
housing list who have no such claims to priority, and this can give rise to
resentment. But the appropriate allocation of resources to housing in the
public sector is a political decision, and the right to housing can only really
be achieved when there is sufficient stock in the public and private sectors to
meet the total demand.93
Given that this has not yet been achieved, the enforcement of the right is
really about procedures, and this can take various forms. At one level, the fair
administration of a housing list can be the subject of scrutiny by the Local
Government Ombudsman, who could find maladministration in relation to
the conduct of an authority and recommend an appropriate remedy. Where
an authority fails in its statutory duty to provide suitable accommodation to a
homeless person, this can be challenged in the courts, although there will be
matters of interpretation as to the meaning of intentional, suitable, etc.
Again, the Ombudsman may, for example, decide that there has been
maladministration because of undue delay. The enforcement of homelessness
legislation has been sporadic, and it may be more appropriate to have a
system of appeal either to the county court or an administrative tribunal to
ensure that there is effective oversight of the discretionary process.
Education is another area where battles are constantly being fought about
resource allocation. Yet, the right to education has presented few problems in
terms of implementation and enforcement. Education is a basic human right,
established by international treaties, and implemented in this country by
placing a duty on local education authorities to provide education for all
children within its area who are of school age. The imposition of this duty has
led to a set of bureaucratic and complicated arrangements which set a
framework for ensuring that education is delivered to each child, even to the
extent of interfering with another basic freedom. No parent can refuse to have
their child educated, and if this is not done within the state or independent
system, then adequate arrangements must be made for home tuition, which is
subject to inspection and approval by the local state on behalf of the
community.
92 Tunc, The quest for justice, p 335.

93 Coombes, The duty to house the homeless, p 66.
285
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
94 Ombudsman of the Republic of Ireland, Investigation of Complaints Against the

Department of Social Welfare, 14 March 1997.
95 Sir John Laws, The constitution, morals and rights, p 631.
96 James and Longley, Judicial review and tragic choices: ex p B, p 368.
286
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
James and Longley, Judicial review and tragic choices: ex p B, p 373.

Ison, A constitutional Bill of Rights: the Canadian experience, p 510.
Galligan, Procedural rights in social welfare, p 55.
Blair, Discretion and Rights: Political Power and Judicial Control, p 131.
Coote (ed), The Welfare of Citizens, p 11.
Ibid, Galligan, p 66.
287
as providing individual redress, an investigation by the ombudsman may

result in improved procedures in general. In addition, the ombudsmen are
adopting procedures to ensure that those who may have been affected in a
similar way by the maladministration are to be traced and given an
appropriate remedy. Tribunals also have a part to play. In this way, the courts
will only be used as a last resort.
As a method of enforcing social and economic rights, it has been suggested
that the UK should enact legislation based on the European Social Charter.103
Such legislation would set out the commitment to social and economic rights.
Its effect would be that any ambiguities in legislation would be resolved in
favour of the Charter, and in cases of judicial review, the courts would be
guided by the Charter in deciding whether an authority had breached its
duty. As an additional mechanism of enforcement, it is suggested that a
standing advisory committee be established which could comment upon any
possible deleterious effects which proposed legislation may have in relation to
the Charter. The standing committee would also produce an annual report
assessing the impact of the Charter.104
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.
288
are so conceptualised. The main method of enforcement is in terms of

procedural processes rather than substantive issues. Thus, the courts could be
charged with oversight of the decision making process in a much more
rigorous manner than at present. We should also note, as Plant points out, that
rights to social and economic well being are not a panacea. They are not a
universal solution overriding markets and democracy as a means of
empowerment, but are an alternative, and possibly a complementary,
approach to the problem of how best to ensure that everyone has a decent
standard of living and the opportunity to participate in the democratic
process. There will still be some areas where inspection, democratic
accountability and other forms of regulation will have a part to play.105 We
should not abandon the search for other methods of ensuring that the benefits
of life are shared between citizens. For example, local communities should be
encouraged to establish independent user and consumer groups for public
sector services. But, in all this, we should not lose sight of politics. The only
effective guarantee of these rights is a commitment to equality of opportunity
and redistribution of basic resources. This depends more on political will than
on constitutionally enshrined rights, but as Notions of rights and equality are
inextricably linked,106 to argue for social and economic rights is a step in the
right direction.
105 Plant, Citizenship, rights and welfare, p 26.

106 Sampford and Galligan (eds), Law, Rights and the Welfare State, p xiii.
289
CHAPTER 16
CONSUMERS AND PARTICIPATION
Geraint Howells
INTRODUCTION
Consumer protection in the modern world. The paradox of both

increased globalisation and decentralisation and its impact on the
ability of consumers to participate
It has always been important for interest groups to influence decision makers.
Modern democracies have changed the way in which such influence can be
exerted. No longer should it be a case of whispering in the ear of an all
powerful decision maker. Instead, attempts have been made to introduce
procedures which are open, transparent and fair. Such decentralisation and
formalism is particularly needed in the modern Welfare State, since its
activities reaches into many areas of society and its decisions affect groups
with often conflicting interests.
A concern to protect the safety, health and economic interests of its citizens
through consumer protection legislation has been one of the characteristics of
the Welfare State. In the UK, the first significant event was the establishment
of the Molony Committee, which reported in 1962. 1 As a result of the
Committees Interim Report, the Consumer Protection Act 1961 had made the
first attempt to regulate product safety. The Committees Final Report led to
the Trade Descriptions Act 1968. The 1970s saw the passage of the Fair
Trading Act 1973, which established the Office of Fair Trading (OFT), and the
Consumer Credit Act 1974, which introduced comprehensive regulation of
consumer credit. Various amendments in the area of product safety
culminated in the Consumer Protection Act 1987, Part II of which introduced
a general safety requirement as well as consolidating previous powers. Part I
of that Act introduced strict product liability and Part III adopted a new way
of regulating pricing misdescriptions through the use of a broad, general
clause. In the 1990s, we have seen an overhaul of food safety regulation by the
Food Safety Act 1990 and further amendment to the Sale of Goods Act 1979,
1
Report on Consumer Protection, Cmnd 1781.

291
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
Sale and Supply of Goods Act 1994.

A comprehensive description is given in Howells and Weatherill, Consumer Protection
Law.
Howells and Wilhelmsson, EC Consumer Law.
General Product Safety Regulations 1994, SI 1994/2328.
Consumer Protection (Cancellation of Contracts Concluded Away from Business
Premises) Regulations 1987, SI 1987/2117.
Kleftodimou, Protecting the consumer under GATT.
Harland, The United Nations Guidelines for Consumer Protection; and Harland, The
United Nations Guidelines for Consumer Protection: their impact in the first decade.
The type of legislation listed above lies in the heartland of consumer protection, but
issues such as financial services, transport, health care, education, social security,
housing and environmentalism are also of concern to consumer groups.
292
Consumers and Participation
present problems for consumer groups. Having to track issues at the

international, regional and national levels (both at the formal legislative level
and at the more informal level of codes of practice or guidance), as well as
within self-regulatory bodies, poses problems for consumer organisations
which tend to work with limited resources.
Different fora for participation. Consumers cannot simply rely on

lobbying government, but must also take advantage of litigation
strategies and be able to influence self-regulatory institutions
Influencing the legislative process is an obvious goal of the consumer
movement. The changes outlined in the last section have complicated this
task. No longer is it simply a matter of lobbying national government.
Influence needs to be exerted at the inter-state level as well. When regional or
international agreements have been concluded, then scrutiny must again be
exercised when that policy is being implemented at the national level. I will
not focus on the impact of pressure groups on the lobbying process within the
political system. Rather, I will focus on the other changes which have opened
up new avenues for consumer participation through litigation and
involvement in self-regulation. These can be viewed as both opportunities and
challenges for the consumer movement. What is clear is that having to be
active on so many fronts is placing great strains on the consumer movement,
which consequently is having to be selective about how it allocates its
resources.
Litigation has always been an important means of developing the law in a
common law system. Litigation should be seen as having an importance
beyond the individual case, because of the power it has to expose consumer
concerns and to stimulate changes in business practices if consumers are
successful.10 However, traditionally, individual consumer cases have not
featured frequently in the law reports. A few consumer cases are heard by the
higher courts, but they remain the exceptions. They are normally the result of
a test case strategy by a consumer organisation, the odd maverick who has the
energy and resources to litigate a claim (which is normally for luxury goods),
or the occasional person able to persuade the Legal Aid Board that their claim
should be financed by the public purse. (This avenue is likely to be further
restricted in the future as legal aid is replaced by conditional fees.)
A trend in the reform of civil procedure has been to provide new avenues
for consumers to obtain cheaper, simpler justice. Such developments have no
doubt promoted the individuals access to justice, but there is a danger that
they simply hide problems from public view. Even the decisions of small
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.
293
claims courts do not have a significant impact on the development of legal

principles as their decisions have no precedent value. The growth of
ombudsmen and other forms of alternative dispute resolution (such as
arbitration under trade association codes of practice) are important means of
consumer redress, but it is important that, as well as resolving individual
disputes, broader lessons are learned from these cases. Ombudsmen do
produce Annual Reports, provide guidance and the Insurance Ombudsmen
even produces anonymous case reports.11 These efforts need to be built upon.
The position with regard to consumer arbitration schemes is less developed.
The National Consumer Council has recommended that the current practice
of arbitrators meeting informally to discuss the schemes should be formalised
and that the Chartered Institute for Arbitrators should be responsible for
publishing annual reports giving statistical breakdowns of the cases heard, a
summary of what the arbitrators perceive to be the main issues, and
anonymous case reports.12
The development of an efficient class action procedure would open up
new opportunities for the courts to be used as fora for debating and resolving
consumer disputes. Not only will it make access to justice more practicable
and affordable, but it will also highlight the collective dimension of consumer
problems and prevent consumer disputes being viewed as purely isolated
problems. The representative action is another vehicle for using the private
law to promote the consumer interest when individual damages would be too
small to justify action by individuals (although the collective damage may be
considerable) or the victims are not identifiable.
The courts are also going to become a more significant fora for policy
debate because of the legislative trend to rely on general clauses. Such clauses
reflect a policy decision by government that it can only determine the
direction of policy and influence the way the debates are undertaken, but
cannot propose specific solutions. Of course, in many ways, the courts are
even less well equipped to undertake such policy decisions than government.
Therefore, self-regulatory bodies or specialist government agencies, such as
the OFT, are seen as important agents in developing policy within the
legislative framework. Yet the courts will have an important role in
supervising their work, either through judicial review procedures or because
of an express role provided for in the legislation.
Litigation may also become an increasingly important avenue for
consumer participation because of the retraction of the Welfare State. As the
State turns its back on regulating certain areas or enforcement authorities
become less vigilant (either through lack of resources or because of a
11 James, Private Ombudsmen and Public Law.

12 National Consumer Council, Out of Court, pp 6061; and Office of Fair Trading,
Consumer Redress Mechanisms, p 53.
294
deliberate policy of lax enforcement), consumers are increasingly going to

turn to the courts as part of a strategy for having their interests recognised and
protected.13
Ultimately, one must be pessimistic about the ability of consumers to outgun businesses in a litigation battle.14 Businesses typically have advantages in
resources, expertise and are able to develop a litigation strategy which allows
them to settle cases which may produce unfavourable precedents and to push
home the advantage of favourable decisions. What is needed are institutions
to equalise this imbalance. These might take the form of ombudsmen, agencies
like the OFT or collective consumer power through class or representative
actions. The private law should not continue to be viewed as the battlefield for
individual consumer litigation but should be melded with public law
institutions to promote the general consumer interest.
Soft law or self-regulation has recently become popular.15 This is because
it has been welcomed by both the right wing, which views it as a form of
deregulation, and by some on the left, who are disappointed with the efforts
of the Welfare State to impose changes through legislation and believe more
progress can be made through mechanisms which permit dialogue and selfregulation.16 In consumer law, one sees manifestations of soft law both in
areas where the State has deliberately not regulated (such as the taste and
decency of advertising),17 or has only introduced back-up powers to support
self-regulation (misleading advertising)18 or has left self-regulation to
supplement general norms fixed by legislation (as in the new approach to
technical harmonisation).19
One consequence of self-regulation is to disperse the decision making
process. Instead of simply dealing with central government bodies, consumers
now have to deal with numerous private bodies whose decisions will affect
them. This poses a problem for consumers who have to locate the new power
centres and find means of influencing their decisions. This requires both that
they persuade these self-regulatory bodies of the need to involve consumers
in their decision making processes and also that they can find the expertise
and resources to operate on numerous fronts.
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
Consumer representatives. Whilst many are welcome to promote

concern for consumers only consumer organisations can claim to
speak for consumers
Ideally, each and every consumer should be able to influence consumer
policy. The most obvious mechanism for consumers to be able to express a
preference is through the market mechanism. There are some innovative
attempts to enable consumers to fashion the market, with ethical banking20
and eco-labelling 21 being obvious examples, but these are exceptional
instances of consumers attempting positively to influence the market. Of
course, when consumers have bad experiences they often react in a negative
fashion by exiting the market, in the sense of not dealing with unsatisfactory
traders in the future.22 When significant numbers of consumers behave in a
similar manner, the cumulative affect may be sufficient to cause traders to
alter their behaviour.23 This would only seem to be an appropriate solution
for small, repeat purchases. When individual consumers have suffered large
losses, they need to be able to voice their concerns.24 Even for small repeat
losses, it may not be sufficient to trust the market to rectify the situation
through consumers choosing the exit option. There may be sufficient
consumers to keep unsatisfactory traders in business (if there is a rapid
turnover in consumers, for example, in tourist resorts or the deficiencies are
difficult to detect), or the market effect of exit may take some time to have an
impact on the trader.
In the last section, I discussed the fora in which consumers could voice
their concerns. In this section, I will consider who can best represent
consumers. It is appropriate to think in terms of the collective interest of
consumers. This is not to say that the collective interest cannot be promoted
by the actions of individuals bringing claims either individually or as part of a
group action. Neither should it be thought that I am suggesting that any one
group has a monopoly on the right to speak on behalf of consumers. There are
not so many advocates of the consumer cause that one can be too choosy
about whom one permits to speak up for that consumer.
Indeed, as the legitimation of consumer representatives is problematic and
the interests of different consumers sometimes conflict, it is appropriate to link
the issue of consumer representation with the task of devising institutions
which are able to filter the views expressed by consumer representatives and
to balance consumer interests against other interests. We have already noted
20 Reifner, Social banking and new poverty: towards a new approach in law and
economics.
21 Maniet, The eco-label and consumer protection in Europe.
22 Hirschman, Exit, Voice and Loyalty.
23 Schwartz and Wilde, Intervening in markets on the basis of imperfect information: a
legal and economic analysis.
24 Ibid, Hirschman.
296
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.
297
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.
298
Bearing the above conceptions of the consumer interest in mind, we will

consider who should represent the consumer. Businesses often claim to have
the interests of consumers at heart. They point out that they will prosper only
if they keep their customers happy and if sub-standard competitors are driven
out of the marketplace. There obviously is some truth in this. Certainly, the
businesses which participate in government consultations and enter into
dialogue with consumers are usually the ones which take their responsibilities
to consumers most seriously. However, one often suspects there is a difference
between the attitude of company and trade association public spokesmen and
the reality of daily business practice, especially in sales departments.
Whatever the motivations of companies when they claim to have the interest
of consumers at heart, it is self-evident that they should not be the voice of
consumers. Many would not even claim such a right. But, it is slightly
shocking to discover that the British Retail Consortium and the co-operative
movement have secured seats on the British Standards Institutions Consumer
Policy Committee. They may well, as purchasing organisations, share similar
interests to consumers, but they will also have conflicts of interest with the
consumer movement and have other avenues through which they can
participate in policy formulation.
One should welcome, rather than oppose, the involvement of members of
the business community with a genuine concern for the consumer interest.
What is objected to is any suggestion that such people are speaking on behalf
of consumers, not least because their conception of the consumer interest may
be rather conservative and not seek to question the fundamentals of market
structure and operation. Similarly, one should be circumspect about viewing
bodies such as standards organisations and testing and certification bodies as
representatives of the consumer interest. Certainly, such bodies will share
many common objectives with consumers, but they will also have their own
agendas and, although independent of specific business interests, certainly
form part of the business community and therefore reflect the values of that
community.
The difference between the consumer interest and the public interest was
set out above. As the Government is the guardian of the public interest, it
cannot also be entrusted to be the sole representative of the consumer interest,
because the two interests may conflict. Reich has noted that governments will
tend to favour highly organised special interest groups which have a lot at
stake over any specific trade regulation at the expense of more loosely
organised diffuse interests, such as consumers.29 However, Reich also points
to the limit of collective consumer organisation as a justification for
government involvement.30 Thus, government has both an obligation to
29 Reich, Internal Market and Diffuse Interests, p 16.
30 In The Logic of Collective Action and The Rise and Fall of Nations, Olsen argues that in large
groups, there is little incentive for members to promote the group cause because of the
free-rider phenomenon.
299
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
31 At the international level, Consumers International (CI) (although having a

membership of consumer organisations from all corners of the world) also has a special
brief to look after the interest of consumers in the developing world. There are
similarities between the need to take on board the interest of vulnerable consumers and
the needs of consumers in developing countries.
32 Their umbrella body in the National Federation of Consumer Groups.
33 Each edition of Which? states the current membership.
300
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.
PARTICIPATION THROUGH LITIGATION

Individual actions perform a valuable function in sensitising the
legal system to the problems of consumers
We have already noted some of the difficulties individual consumers face in
bringing actions and that various forms of alternative dispute resolution and
simplified court procedures have been established to overcome these
problems. Whilst these new avenues for redress may resolve individual
disputes, it was commented that they may do little to assist in the
development of the law and the improvement of trade practices. Given the
problems consumers face in bringing claims,35 even with the new avenues for
redress, the number of cases brought to some sort of dispute resolution forum
is likely to continue to represent only the tip of the iceberg. It is important that
procedures are put in place to learn from the disputes which are adjudicated
upon in order that industry cannot simply pay off the few who seek redress at
the expense of the many who continue to be harmed by various breaches of
the law.
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.
301
A particular problem with consumer disputes is that they arise in

isolation. Individual consumers are often unaware that other consumers have
similar problems. They act alone against various business entities (retailers,
producers, insurers) who can conspire to make consumers feel as if they are
behaving unreasonably. Instead of being seen as a citizens champion, the
complaining consumer is frequently viewed as a self-interested golddigger
whose efforts are using up valuable commercial and judicial time. This
impression is often due to the fact that the amount at issue is relatively small
and the scale of some consumer problems is often not fully appreciated as the
total impact on the consumer population is not evident. Strategies to ensure
that the collective dimension to consumer problems is brought to the fore will
be suggested below, but this should not detract from the value of individuals
making their grievances heard through the various channels for redress.
Consumer problems need to be visible and familiarity with consumer
problems is the only way that adjudicators will become sensitised to the
dynamic of consumer issues and the need to take them seriously. Whatever
the motivation of consumers who bring genuine claims to the court seeking
redress, venting anger or a concern to promote standards they perform an
important service in revealing the extent of harm to the consumer.
Introducing a class action procedure is necessary not only to make

the litigation of large-scale consumer problems manageable and
affordable, but also to highlight the collective dimension to
consumer problems
An obvious way for the collective dimension to consumer problems to be
expressed is for consumers with the same or similar claims to bring a class or
group action. The UK has no such procedure at present and has muddled
through with a mixture of adopting a test case strategy and invoking the
representative action under Ord 15 r 12 of the Rules of the Supreme Court.36
The representative action can be invoked where numerous persons have
the same interest in any proceedings. At one time it was said that this
excluded claims for damages or debt, but the modern approach is to be more
flexible concerning the circumstances when such actions can be brought.
Nevertheless, representative actions remain subject to limitations and, as a
method for promoting consumer participation, suffer from the fact that the
representee is in exclusive control of the action. He is also solely liable for any
costs. The representee must be one of the litigants and so a consumer
organisation would not seem able to use this procedure to bring an action on
behalf of consumers.
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
unlikely to be forthcoming from the Government. Such funds operate in

Ontario and in Hong Kong where they have been funded, respectively, from
interest on solicitors trust accounts and from the lottery. The fund can
replenished by successful litigants paying into it a percentage of their
damages.42 However, the problem of liability for the other partys costs
remains. The rule that costs follow the event may have to be departed from in
such actions or at least an upper limit for a plaintiffs liability might have to be
set.43 Insurance may be another option to cover any potential liability for the
other sides costs, but this is unlikely to be available in the cutting edge cases
where the risks are greatest. For example, the Law Societys scheme to insure
such risks, the Accident Line Policy, excludes claims relating to drugs or
tobacco.
Representative actions are needed to deal with consumer

problems which it is not appropriate to seek to resolve through
individual litigation, but the problem of seeking redress for
small consumer claims has to be distinguished from a procedure
which seeks to improve business practices through court
adjudication and injunctive relief
Class actions are most suitable when individuals have significant amounts at
stake to warrant their personal commitment to the litigation. In the consumer
context, this normally means that they have suffered personal injury or else
the claims relate to financial services. When the amounts involved are small or
no specific individual has been harmed, there is little incentive for individual
consumers to participate in litigation and under current procedures there is
little financial incentive for lawyers to become involved.
The Lord Chancellor has recognised that access to justice in these cases
needs to be addressed in a different way from class actions and has set up a
working group to consider how some form of representative action can be
established.44 However, it is unclear whether the problem that is being
addressed is that of how small claims can be litigated or the broader issue of
how consumers or consumer organisations can litigate to seek injunctive relief
against breaches of the law.
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.
305
whereas in France and Germany consumer organisations have standing in

such actions.49
The Misleading Advertising Directive required that persons or
organisations having a legitimate interest in prohibiting misleading
advertising should either be able to bring legal actions against such
advertising or else bring the matter before a competent administrative
authority, either to decide on complaints or to initiate legal proceedings.50
This clearly did not require that consumer organisations be given standing.
The position is more ambivalent under the Unfair Terms in Consumer
Contracts Directive which provides that persons or organisations, having a
legitimate interest under national law in protecting consumers, may take
action according to the national law concerned before the courts or before
competent administrative bodies for a decision as to whether contractual
terms drawn up for general use are unfair.51 The UK Government took the
view that it was sufficient that the Director General of Fair Trading be given
powers to seek injunctions as the Directive did not require that consumer
organisations be granted standing.52 I considered this to be a permissible,
albeit mean spirited, interpretation of the Directive, but views about this have
differed.53 The UK Consumers Association commenced an action before the
European Court of Justice alleging that the UK had failed to implement the
Directive properly. The new government has agreed to settle the case by
granting consumer groups the right to bring representative actions and that
partly explains why there is a Lord Chancellors Department working group
on this subject.
There is also continued pressure from Europe to provide for representative
actions granting injunctive relief. The recently adopted Distance Selling
Directive also provides for injunctive relief, although this time clearly leaving
it up to the Member States to determine whether an independent public body
specifically responsible for protecting consumer interests or a consumer group
should have a right of standing.54 Of more far reaching significance is the
directive on injunctions for the protection of consumers interests.55 This
extends the injunctive procedure to cover a wider range of directives and also
49 In France, groups are authorised by the State to bring such actions, whilst in Germany,
the courts apply criteria for standing laid down under the Unfair Competition Act 1909
and the General Conditions of Contract Act 1976. Howells and Wilhelmsson, EC
Consumer Law, p 287.
50 OJ L250/17, 1984, Art 4(1)
51 OJ L95/29, 1993, Art 7(2).
52 Unfair Terms in Consumer Contracts Regulations 1994, SI 1994/3159.
53 Brownsword and Howells, The implementation of the EC Directive on Unfair Terms in
Consumer Contracts: some unresolved questions, p 260. Cf Wilhelmsson, Public
interest litigation on unfair terms.
54 OJ L144/19, 1997.
55 OJ L166/57, 1998, on the draft directive see Howells and Wilhelmsson, EC Consumer
Law, pp 28894; and Bethlem and Joustra, The Draft Consumer Injunctions Directive.
306
provide for the internal market dimension by permitting qualified entities to

bring actions in other member states. The directive would clearly leave it to
member states to decide whether the qualified entity should be a public body
or a consumer organisation or both.
The UK is going to have to implement this directive and the present
government is likely to grant standing to consumer organisations. No doubt,
standing will also be granted to the OFT within its area of competence as it
can properly be considered to be sufficiently independent and to have the
function of protecting consumer interests. The matter is more problematic in
relation to areas which are the responsibility of government departments (for
instance, consumer safety is the responsibility of the Department of Trade and
Industry) as these ministries cannot be considered to be independent and are
not specifically responsible for protecting consumer interests.
The ideal solution would be to establish the dual competence of a public
body and consumer organisations. Public bodies are more likely to have
resources to supervise the market and bring such actions on a consistent and
large scale. They can also be placed under a duty to perform this function and
public law remedies are available if they fail to perform their duties diligently.
Consumer protection is also then not subject to the vagaries of possibly
intermittent interest on the part of consumer organisations. Indeed, the work
of the OFT in relation to unfair terms has been very impressive.56 However,
the OFT was no doubt keen to impress with its ability to protect consumers, in
part, because of the pressure from the Consumers Association to be granted
standing. The possibility of actions being brought by consumer groups will no
doubt act as a mechanism to keep public bodies vigilant and as a further
incentive for industry to come to a satisfactory accommodation. Granting
consumer organisations a right of action will permit them to challenge the
public bodys application and interpretation of the law. Although the court is
intended to be the final arbiter of the law under the injunctive procedure, in
practice cases are currently settled by negotiation between the industry and
the regulator. Consumers may also prefer to bring an action themselves rather
than rely on public bodies. This privatisation of justice may be necessary given
the increasingly limited resources available to State consumer protection
agencies.
If a representative action is to be introduced, then consideration will have
to be given to whether its scope should be more extensive than that required
by the EC Directive. For instance, should it apply to any breach of the
civil/criminal law affecting consumers? Should a general duty to trade fairly
be introduced and an injunction be obtainable for breach of that obligation?57
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.
307
Should the remedies be restricted to injunctions or could this be combined

with giving the courts additional powers to enable them to achieve justice,
such as requiring appropriate corrective advertising, product recalls, repairs
or even awarding damages? How are consumer organisations to finance their
role as market monitors? Will it be necessary to ensure that in successful cases
costs awards are on a full indemnity basis or would it be necessary to go even
further and award double or treble costs to compensate for those cases which
consumer groups will inevitably lose from time to time?
The present government seems to have recognised the need for consumers
and their organisations to participate in the legal process through
representative actions, but one suspects that it has not yet taken on board the
implications of this policy choice or all the dimensions of the problem. It
seems clear that some of these reforms will be more than purely procedural
and will require new substantive rights of action to be established.
PARTICIPATION THROUGH SELF-REGULATION

There is a need to involve consumers in the self-regulatory
process and to integrate self-regulation into the legal framework
In the last section, we reflected on one consequence of the reduced role of the
State in regulating the market, namely, the increased role of litigation.
Another symptom of the changed nature of the States involvement has been
the development of self-regulation. Sometimes, this is seen as a substitute for
regulation, at other times it is a means of fleshing out principles laid down in
law. I am not one of those who reject self-regulation out of hand. It is true that
a great deal of experience to date has been disappointing, with self-regulation
offering little beyond what could have been achieved through statutory
regulation and, indeed, often being a sop offered by industries which knew
they were unlikely to face regulation so long as they made a pretence at
putting their own house in order.
Self-regulation can, however, have some potential benefits to consumers. It
can deal with some issues, such as matters of taste and decency, more
effectively than is possible in legislation. The appropriate rules can be drafted
in language which is more familiar to those who will have to use them,
industry may be more committed to uphold standards which it has set for
itself, and such rules may be more expeditiously produced and up-dated.
However, to be effective, self-regulation has to work within a legislative
framework which both sets the parameters for policy development and carries
the implicit threat that a legislative solution will be imposed if self-regulation
57 Office of Fair Trading, A General Duty to Trade Fairly.
308
proves to be unsatisfactory. There must also be dialogue with consumers so

that the self-regulatory solutions represent a genuine reconciliation of
business and consumer interests, rather than simply the offerings of the
business community to the unrepresented consumer.58 This is problematic
because of the weak organisation of consumers and so there may be a case for
the Government to play a role in facilitating the involvement of consumers.59
I will look at three areas of self-regulation to assess its current performance
and suggest ways of enhancing consumer participation and the integration of
self-regulation into the legislative framework. First, I consider standardisation
within the context of the new approach to technical harmonisation, which in
many respects might serve as a model for the integration of law and selfregulation. Next, I take the topic of advertising, which has had a long tradition
of self-regulation in the UK. This area illustrates another technique of
integration by using the legal system as a back-up to self-regulation. Then, I
look at the way in which the OFT promotes Codes of Practice. A recent report
by the OFT has been critical of how these have operated in the past and I
consider new ways of developing business standards on a voluntary basis.
Finally, I will conclude by considering how consumers can participate more
pro-actively in the self-regulation of the market.
Standardisation a possible model for the development of new

reflexive forms of law making which involve consumers in the
regulatory process
The new approach to technical harmonisation adopted by the EC is an
innovative attempt to reconcile the need for regulation of product safety with
the demand by industry that it be allowed to satisfy these standards in a
manner which does not stifle innovation or impose undue burdens.60 New
approach directives cover broad categories of products and contain a general
safety requirement and a list of essential safety requirements. The essential
safety requirements will be deemed to be complied with if the product meets
the relevant standards produced by CEN (European standardisation body) as
adopted by national standardisation bodies (for example, the British
Standards Institute (BSI)); alternatively, the producer can satisfy them by
other means and obtain third party assessment of conformity. Conforming
products carry the CE marking and can circulate freely within the internal
58 Howells, Soft law in EC consumer law.

59 One of the main proponents of self-regulation has conceded that consumer law would
be a shaky example of reflexive law at work because the social asymmetries of power
and information are resistant to institutional attempts at equalisation. Teubner,
Substantive and reflexive elements in modern law, p 277.
60 Council Resolution on the new approach to technical harmonisation and
standardisation: OJ 1985 C 136/1. For more detail, see Howells, Consumer Product Safety.
309
market. Member States may, nevertheless, invoke safeguard clauses and

dangerous products can, therefore, still be removed from the market.
Standardisation is crucial to the new approach. Consumers need both to
persuade standardisation bodies that their interests should be taken into
account and to exercise their right to participate effectively.61 In practice,
consumer representation requires consumer representatives to have sufficient
technical knowledge to be able to hold their own with the other members of
technical committees. These will mainly be industry representatives with a
technical background. Clearly, Government officials may also have a role to
play in ensuring that consumer interests are taken into account.
Consumers are fairly well represented within the BSI. The BSI has a
Consumer Policy Committee (CPC), supported by a secretariat, which
represents consumers within the political organs of the BSI. Consumer
representation on technical committees comes from two sources. The BSI has
its own panel of lay consumer representatives who serve on technical
committees. These seem to be well motivated individuals who do their best to
come to grips with the issues in the sectors they cover, yet it is difficult to
believe that they can really make a serious impact when faced with technical
experts from industry. There is also the issue of the legitimacy of their claim to
represent the consumer interest. They are appointed by the BSI in their
personal capacity. Fortunately, the UK Consumers Association also provides
a pool of technical experts who can participate in the work of technical
committees in their own right. The whole system is relatively well supported
by the DTI, which provides the BSI with 100,000 per annum to enable
consumers to participate in standards work. This funding is particularly
important given that increasingly the vital decisions are being made at the
European (CEN) and international level (International Standards Organisation
(ISO)). One might, however, question whether better use of the money might
be made if it was channelled directly to the consumer organisations which
have technical expertise, with lay consumers having a more general
consultative role.
Overall, then, UK consumers seem fairly well represented at the national
level. However, the focus of standardisation work has switched from the
national to the regional and international levels. Within Europe, the national
standardisation bodies are members of the CEN. The CEN produces
European standards (ENs) which have to be converted into national
standards. Consumers therefore need to be represented at the European level.
At CEN committees, consumers can be represented in two ways. There may
be a consumer representative within the national delegations from member
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
standards bodies. However, such a representative would be there as a

representative of the national body and would be expected to follow the
national bodys line, even if this was counter to the consumer interest.
Alternatively, the CEN makes it possible for representatives of consumer
groups to participate as observers on CEN committees.
The structure of consumer representation at the European level was a
matter of fierce debate. The CEN would have preferred to have housed a
consumer body within its own structure with its membership being drawn
primarily from the consumer councils of national members. However,
consumer groups opposed this as not all national consumer councils were
perceived to be sufficiently independent. The consumer organisations view
prevailed and an independent body was established comprised of national
consumer organisations. This is known as ANEC.62 It is relatively well funded
by the EC, but still it is difficult for consumers to organise at the regional level
because of travel costs and the problems of reconciling different consumer
interests between the various Member States. These problems are more
extreme at the international level where the difficulties are accentuated
because of weaker consumer representation. The ISOs consumer council
(COPOLCO) is drawn from national member consumer councils (the model
rejected by Europe) and Consumers International (CI) is the only body with
the right to represent consumers on ISO technical committees. This gives rise
to several problems. Until recently, CI (the only body with the right to
represent consumers) had not taken its role in relation to standardisation
seriously. Now it is trying to improve matters, but as it has a commendable
bias towards protecting consumers in the developing world, it is unlikely to
do much to promote the interest of first world consumers. In any event, it has
no funds to sponsor participation at ISO committees. Ironically, this often
leads it to accept offers from ANEC to send European delegates to ISO
meetings. Thus, world consumers tend to be represented by relatively affluent
European consumer associations.
Standardisation within the framework of the new approach offers an
interesting model of how regulation and self-regulation can be combined. The
key to the success of this model will lie in ensuring that consumers are
represented in the standardisation process. Some efforts have been made in
this direction, but these are counter-balanced by moves toward the
regionalisation or globalisation of standardisation. It becomes increasingly
difficult to organise consumers as the focus of activity moves away from the
national to the regional and international levels. However, this could be seen
as a positive development if consumers could be sufficiently organised to
concentrate their efforts at a few regional or international focal points rather
than having to fight battles on many national fronts.
62 Farquhar, Consumer representation in standardisation.

311
Advertising self-regulation was established in the early days of

consumerism and needs to involve consumers more and to
become better integrated with the legal system
The UK has a strong tradition of self-regulation of advertising.63 There is no
doubt that since its inception in 1962 the Advertising Standards Authority
(ASA) has helped clean up print advertising,64 and self-regulation probably
continues to be the best way to regulate matters of taste and decency.
However, it lacks effective sanctions. Although, it can prevent advertisements
being published in media owned by adherents to the Code, and contravention
may lead to expulsions from trade associations and the withdrawal of
financial privileges by trade or media organisations, nevertheless, it frequently
simply asks advertisers not to use an advertisement again or to take more care
in the future. There appears to be little fear of the ASA by advertisers, or more
particularly by the advertising agencies which devise marketing campaigns.
Some campaigns such as those by Benetton seem to court publicity by
working at the edge of what is permissible. For instance, at a seminar
organised by the ASA, I was shown an advert for a strong cider drink which
showed people, who certainly appeared to be under 25,65 fooling around in
supermarket trolleys in a carpark.66 The advertisers commented that this was
simply a group of young people having fun in a supermarket carpark after
shopping. Their gall simply beggared my belief and underlined to me the
contemptuous attitude of some towards the ASA.
When advertisements are misleading yet the self-regulatory procedures
have been exhausted with the advertiser failing to conform with the ASAs
wishes, the Director General of Fair Trading can seek an injunction.67
However, this is only available for misleading advertisements. This is,
nevertheless, a welcome attempt to integrate the self-regulatory structure into
the legal system. However, it only uses the law as a back-up and does not
attempt to create a legal framework within which self-regulation can operate
in a manner which complements the legal rules and ensures the active
participation of consumers. Generally, self-regulation and regulation (such as
the Trade Descriptions Act 1968) have proceeded in parallel in the areas of
false and misleading advertising, with self-regulation extending beyond these
confines to touch on matters of taste and decency.
63 For an endorsement of self-regulation, see Thomson, Self-regulation in advertising:
some observations from the Advertising Standards Authority.
64 The Independent Television Commission performs a similar function for television
advertisements. For a recent assessment of the ASA, see Munro, Self-regulation in the
media.
65 Models in alcohol advertisements should be 25 years of age.
66 (1996) 65 ASA Reports, 16 October. In that case, future advertisements were required to
be cleared by the Copy Advice team. Only tobacco advertisements normally require
pre-clearance.
67 Control of Misleading Advertisements Regulations 1988, SI 1988/915.
312
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
Codes of Practice need to be more influenced by consumers and

better integrated into the legal system
The original Fair Trading Bill contained no provisions on Codes of Practice,
but, at the suggestion of a trade association, the Government introduced a
clause (now s 124(3) of the Fair Trading Act 1973) which imposes a duty on
the Director to encourage relevant associations to prepare, and to disseminate
to their members, codes of practice for guidance in safeguarding and
promoting the interests of consumers in the United Kingdom. At first this
was not seen as a primary tool for promoting trading standards, but after the
Part II rule making procedure quickly became moribund because of its
excessively bureaucratic procedures, the OFT began devoting more attention
to Codes of Practice as a means of improving standards. However, a former
Director General, Sir Gordon Borrie, has described how, as the OFT became
more interested in Codes, industry became less enthusiastic as they realised
the threat of legislation had receded.69
In the 1970s, the OFT was proactive in developing codes of practice in
problem sectors. By the mid-1980s, the emphasis had switched from
negotiating new codes to monitoring existing ones, although minimum
requirements for new codes had been developed. The OFT was, however,
becoming disillusioned about the benefits of Codes and tried to distance itself
by putting forward guidelines and offering a degree of endorsement, but
leaving the implementation, publicity and monitoring to the relevant
associations. It has recently seen an upsurge in interest in Codes and issued a
consultation paper, Voluntary Codes of Practice,70 to determine its future policy.
The follow up report is discussed below.
The OFT found that many codes are not well respected by enforcement
authorities and consumer advisers.71 Nevertheless, it considered that Codes
have achieved real, though limited, successes.72 It suggests that indicators of
the likely effectiveness of Codes are a combination of one or more of the
following factors: the availability of a strong sanction, a plausible threat of
statutory regulation, a clear wish by the good players in the industry to
distinguish themselves from others, and obvious benefits to consumers,
sufficient to affect their choice of traders.73
The Director General of Fair Trading has issued best practice guidance on
the development of Codes and is prepared to endorse Codes which comply
with these guidelines by signing a forward to the Code which welcomes its
introduction. The more tangible benefit is that, whilst all Codes are
69
70
71
72
73
Quoted in Ramsay, Consumer Protection, p 287.

Office of Fair Trading, Voluntary Codes of Practice.
Ibid, p 7 (citing a 1987 study).
Ibid, p 15.
Ibid, p 11.
314
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
74 Howells and Weatherill, Consumer Protection Law, pp 50711.

315
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.
Consumer organisations should consider taking a more proactive

role in their dialogues with business
So far we have seen consumer organisations playing a largely reactive role in
the self-regulatory process. Consumer organisations should consider being
more pro-active in channelling the collective power of consumers more
directly so that consumers rather than traders set the framework within which
trading standards are set. Recently, in the context of unfair terms regulation, I
have advocated a policy of collective bargaining in which consumer
organisations give their approval to model contracts.77 Of course, if the recent
OFT report on Raising Standards of Consumer Care bears fruit, consumer groups
75 Office of Fair Trading, A General Duty to Trade Fairly, pp 3538.
76 Office of Fair Trading, Raising Standards of Consumer Care.
77 Howells, Good faith in consumer contracting.
316
may find they can effectively participate in the development of meaningful

standards within BSI procedures but, if that does not materialise, consumer
groups should consider becoming more proactive.
Such tactics have been tried to some extent by consumer groups in
Belgium and Holland78 and the Scandinavian Ombudsmen negotiates model
contract terms.79 Closer to home, the Northern Ireland Consumer Council has
negotiated public transport contracts.80 One knowledgeable commentator has
admitted to being disillusioned about the impact of such model contracts,
because of the time and effort needed to negotiate them.81 However, he still
describes the negotiation model as the ideal model. There is also the problem
that the model contracts may not apply to the worst traders, who are unlikely
to be members of trade associations or otherwise fail to use the model terms.
However, whatever the experience has been in the past, it seems possible for
consumer organisations to develop their role in this area. A useful model
might be the crystal mark for plain English awarded by the Plain English
Campaign. This is highly prized by many businesses, who allocate substantial
resources to obtain it. There are, of course, always traders who do not follow
best practice and that is why we will need to maintain regulatory powers as a
back up.
Whether consumers can be persuaded to demand contracts approved by
consumer organisations or products which meet their standards will depend
upon the quality of the assurance and the consumer organisations ability to
convince consumers of the added value provided by their approval.82 This
will require the collective bargain to have secured tangible improvements for
consumers and these must be wanted by consumers, if necessary to the extent
of being prepared to pay for any additional costs. Testing the results of
consumer organisation negotiations in the market in this manner both deflects
from any possible criticism that consumer organisations do not reflect
ordinary consumers wishes and encourages consumer groups to concentrate
on those sectors where the market currently provides consumers with the
worst deals.
78 Hondius, Unfair Terms in Consumer Contracts, pp 170, 190.

79 Wilhelmsson, Control of unfair contract terms and social values: EC and Nordic
approaches.
80 I am indebted to Brian Collins of the University of Ulster for this information.
81 Hondius, Unfair Terms in Consumer Contracts, pp 22425.
82 It should not be necessary that all consumers be sensitive to the value of the new
contract, so long as there is a significant margin of consumers who will seek it out.
Schwartz and Wilde, Intervening in markets on the basis of imperfect information: a
legal and economic analysis.
317
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
PARTICIPATION AND CORPORATE

GOVERNANCE
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
It is true that companies freedom of action is constrained by the operation of

product, capital, and labour markets, but within these limits there remains a
large core of discretion. Company decision making is not, in other words,
merely a matter of slavish obedience to market signals. Nor is corporate
power being eliminated by the trend towards globalisation. Domestic
companies that operate in internationally traded sectors may no longer be able
to shelter from the forces of competition within national boundaries, but
globalisation has, if anything, increased rather than diminished the power of
the large multinationals. Economies of scale and scope and the judicious use
of strategic alliances and other forms of networking ensure that these
organisations operate in conditions in which competition is suitably
attenuated.4
The sheer economic clout of large public companies and the international
mobility of their activities give them some capacity to resist attempts by
1
2
3
4
Korten, When Corporations Rule the World, pp 22021.

Kaysen, The corporation: how much power? What scope?, p 85.
Barnett and Muller, Global Reach: The Power of the Multinational Corporations, p 15, quoted
in Monks, Corporate governance in the twenty-first century, a preliminary outline, p 9.
Korten, When Corporations Rule the World, ch 17; Hirst and Thompson, Globalisation in
Question, ch 3.
319
national governments and broader political groupings to regulate their

operations in the public interest. Nevertheless, the image of the truly
transnational enterprise, lacking a natural home base and willing to move any
of its operations to wherever costs are lowest, has little basis in reality.5
Moreover, differences between national and regional economies in terms of
workforce skills, levels of trust and the development of social capital,6 and
local geography, mean that not all are forced to compete to attract and retain
corporate patronage on the basis of crude cost conditions alone. While the
scope for intervention to reorientate corporate behaviour is not unlimited
therefore, the power of international companies and the demands of the
capital market do not completely block a reformist agenda.
The recognition that large businesses have power to make decisions that
have important consequences for a wide range of groups has led many
theorists to classify them as political organisations, possessing a public, rather
than a purely private character.7 In accordance with the principle that those
who are directly affected by decisions should have a right to participate in
making them,8 many of these theorists have argued that the relevant groups
or constituencies should be represented in the companys decision making
structures.9 In this way conflicts between the company and its external
environment might be resolved internally, by political processes of dialogue
and negotiation. Some envisage a version of the corporation as the Republic
in miniature.10 The forum often suggested for constituency representation is
the board of directors,11 on the assumption that it is here that the ultimate
power of control over the company lies.12
No system of corporate governance found in practice currently mandates
multi-constituency board representation, though there are examples of
5
6
7
Hirst and Thompson, Globalisation in Question, chs 4 and 6.

Plender, A Stake in the Future: The Stakeholding Solution, pp 1821.
Eg, Dahl, A prelude to corporate reform. There is a long tradition of regarding the
company as a body whose existence originates in a concession from the State and
which, in return, owes public responsibilities which the State may, if necessary,
intervene to enforce. Parkinson, Corporate Power and Responsibility: Issues in the Theory of
Company Law, pp 2532.
8 Archer, Economic Democracy: The Politics of Feasible Socialism, ch 1.
9 For a critical analysis of political models of the corporation, see Eisenberg, Corporate
legitimacy, conduct, and governance: two models of the corporation. For a sympathetic
analysis, see Dallas, Two models of the corporation: beyond Berle and Means; and
Dallas, Working toward a new paradigm.
10 Chayes, The modern corporation and the rule of law, p 39, quoted in Orts, The
complexity and legitimacy of corporate law, p 1620.
11 Eg, Steinmann, The enterprise as a political system, p 401; Beck, Corporate power and
public policy, pp 20913; and Porter, Capital disadvantage: Americas failing capital
investment system. The proposals in Nader et al, Taming the Giant Corporation, involve
the appointment of directors with responsibilities for a wide range of constituencies, but
with appointment to be by the shareholders exclusively.
12 As to which, see Demb and Neubauer, The Corporate Board: Confronting the Paradoxes.
320
Participation and Corporate Governance
systems that incorporate dual participation, by shareholders and employees.13

The absence of requirements for multiple representation no doubt in part
reflects fears that increased complexity of decision-making and possible
confusion over corporate objectives would seriously detract from the wealthcreating capacity of the company.14 But there is also considerable room for
doubt about how effective such an arrangement would be in furthering the
interests of the relevant groups. Ideally, all groups on whom the company has
a significant impact should be included if a defensible balancing of interests is
to be achieved, but identifying and facilitating representation for all affected
interests would be likely to prove impossible. There is in addition a real
danger that policy outcomes would either be arbitrary, being dependent on
the bargaining strength of particular constituencies and the shifting
composition of coalitions between them, or else little different from current
ones, given managements superior access to information, the ability of
managerial insiders to set the companys agenda, and their greater expertise
in the practicalities of running the business.15
Although there are theoretical and practical difficulties associated with
multi-constituency board representation, it will be suggested that there are
good arguments for increasing participation in corporate decision making by
other means. What needs to be recognised is that participation can serve a
number of different purposes and hence that the form participation should
take in particular instances and the institutional arrangements necessary to
facilitate it vary. This chapter will examine three reasons for extending
participation. They are: to constrain profit making to reduce various kinds of
adverse third-party effects; to consolidate productive relationships between
stakeholders; and to reflect the special status of employees within the
organisation. Before that, it is necessary to look briefly at the model of the
company that is currently reflected in English company law, which provides
exclusively for participation by shareholders. The aim is to draw attention to
the fact that in practice participation even by shareholders is problematical
and to give an impression of the structural arrangements upon which
mechanisms to allow participation by other groups must be superimposed.
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
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
requirements and they may be supplemented in the companys own

constitution. It is not uncommon, for instance, for the companys articles of
association to lay down borrowing limits that can be exceeded only with
shareholder consent. The shareholders also have voting rights in relation to
issues that affect the relationship of the shareholders between themselves, for
example, changing the rights attached to shares.
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
Stapledon, Institutional Shareholders and Corporate Governance, pp 9298.

Easterbrook and Fischel, The Economic Structure of Corporate Law, pp 6667.
Berle and Means, The Modern Corporation and Private Property.
Ibid, Stapledon, ch 5; and Gaved, Ownership and Influence.
323
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.
Participation by means of exit

The obstacles shareholders face in attempting to remove the boards of poorly
performing companies might seem to have major implications for their ability
to protect their interests. Participation by means of exit, associated with the
take-over market, is regarded by many, however, as an efficient substitute for
participation by means of voice.31 The process by which shareholders are
able through exit to influence the way in which the company is run can be
explained as follows. Shareholders who are dissatisfied with the returns they
are obtaining on their investment are likely to sell their shares, and this will
have the effect of driving down the market price of the companys equity. The
companys low market valuation will then act as a signal to rival
managements that its assets are being under-utilised and that there is an
opportunity to make a profit by taking control of the company and operating
it at a level closer to its true potential. The bidder will therefore make an offer
to buy the companys shares, at a premium above their current market price,
in order to induce the bulk of the existing shareholders to sell. On obtaining
control, the bidder will replace the management team with its own nominees.
In this way inefficient managements are selected out by the market, but at
least as importantly, managers are provided with a strong incentive to run the
29 Coffee, Liquidity versus control: the institutional investor as corporate monitor,

p 1328.
30 Stapledon, Institutional Shareholders, pp 10617.
31 For the origin of this terminology, see Hirschman, Exit, Voice and Loyalty: Responses to
Decline in Firms, Organisations and States.
324
company in accordance with shareholder preferences, for fear of being

displaced.
In reality, the market for control as a mechanism for correcting managerial
inefficiency seems to work rather poorly. The results of consummated takeovers show that many were mistakes.32 Among other explanations, this may
be a result of the difficulties bidders face in putting an accurate value on what
they are buying. Furthermore, there are significant frictions in the working of
the market. In order to obtain control, a hostile bidder must bear significant
transaction costs in the form of professional and underwriting fees. To make
an acquisition worthwhile a raider must be confident of recouping these costs,
together with what is likely to be the even greater sum of the control
premium, 33 through improvements in efficiency and other gains.
Managements who are unresponsive to shareholders wishes are able to
shelter behind these costs and it has been suggested that the price of obtaining
control is so high that the disciplinary force of the market is likely to be
limited to instances of gross managerial failure.34 It is easy enough to see that
the market would be too insensitive to regulate the level of management
remuneration, for example, since even the most extravagant sums currently
paid amount to only a very small proportion of the costs of a successful bid.
Quite apart from questions of cost, there is little evidence to suggest that in
practice take-overs are inspired by inadequacies in the management of the
target company, as distinct, for instance, from opportunities to obtain
economies of scale or other operating efficiencies, or simply a desire for the
aggrandisement of the bidder.35 If poor performers are not singled out, the
market for control cannot be regarded as a mechanism for correcting
management failure. This is not to deny that the fear of take-over has a major
effect on managerial conduct, however. It gives the directors of all companies,
whether badly managed or not, a reason to be concerned about share price.
While this may have positive effects in terms of stimulating efficiency, many
believe it also encourages an unhealthy preoccupation with short term
financial results, at the expense of investment in physical plant, research and
development, and training.36
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
There are then significant weaknesses in both voice and exit as

mechanisms of shareholder participation. Concern that managements are
insufficiently accountable to shareholders and as a result have too much
freedom to act in their own interests, or otherwise inefficiently, has been the
predominant issue in the corporate governance debate in this country. So far,
continued exhortations to shareholders to exercise their voting rights and to
become more actively involved in the affairs of the companies in which they
invest, and the modest, though not insignificant recommendations in the
Cadbury37 and Greenbury38 Codes of Best Practice, have been the only
outcome. Providing effective mechanisms of managerial accountability is
important, not just for the sake of ensuring that the shareholders obtain a
proper return on their investment, but more broadly in order to underpin the
legitimacy of the system and to protect the wealth-creating capacity of the
economy. This facet of the corporate governance debate will not be taken
further here, however. Instead, the rest of this chapter will examine aspects of
governance that have been given much less prominence in the UK, namely
how governance mechanisms might be used to influence the companys social
and environmental performance and to secure the interests of all the parties
involved in corporate wealth creation, and not just those of the shareholders.
Before leaving the shareholders, however, something should be said about the
role that they can play in the first of these functions.
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
37 Cadbury Committee, Report of the Committee on the Financial Aspects of Corporate

Governance. The Codes requirements, which are not binding (though the companys
annual report must explain non-compliance), include the appointment of non-executive
directors and improved financial reporting and controls. And see, also, now, Hampel
Committee, Preliminary Report of the Committee on Corporate Governance.
38 Greenbury Committee, Directors Remuneration: Report of a Study Group chaired by Sir
Richard Greenbury. The report relies on remuneration committees made up of nonexecutive directors and increased disclosure to control excessive pay and inappropriate
incentive schemes.
39 The resolutions were defeated, but they attracted significant support at more than 10%
of the votes cast. There is a longer tradition of such activity in the United States. Kuhn
and Shriver, Beyond Success: Corporations and their Critics in the 1990s, pp 5467.
326
control of ethical investment funds.40 In general, these bodies simply refuse to

hold shares in companies involved in proscribed activities such as tobacco or
arms manufacture, but there are also other organisations, notably charities
and campaigning groups, that are prepared to engage more actively with
managements in their capacity as shareholders to bring about changes in
company policy. Such groups invariably lack the voting support needed to
carry their resolutions, but their primary aim is usually to influence company
behaviour by putting pressure on management through adverse publicity and
in this they may well succeed.41
In this connection, the restrictive terms on which shareholders are entitled
to propose resolutions at AGMs should be noted.42 The company is required
to give notice of a shareholders resolution (which is a precondition of the
resolution being put to the meeting) only if it is requisitioned to do so by
shareholders who between them have at least 5% of the voting rights, or they
number 100 or more and their paid up share capital averages not less than
100.43 The requisitionists are also entitled to insist that the company circulate
a statement prepared by them about the resolution of not more than 1,000
words (or other business to be dealt with at the AGM). Since it is rare for even
the very largest institutions to hold as much 5% of the votes,44 and given the
logistical problems of organising 100 shareholders, it is not surprising that
shareholders resolutions are extremely uncommon. 45 Added to these
difficulties, the shareholders making a requisition must meet the companys
costs in complying with it.46 There is a case for relaxing these provisions. A
suitable reduction in the percentage holding requirement could increase the
40 The amount invested in ethical funds is reported to have almost doubled over the past
two years, from 800 m in June 1995 to 1.5 billion in June 1997. The total sum invested
in unit trusts as a whole, however, is 149 billion.
41 Sparkes, The Ethical Investor.
42 Shareholders have no right to propose resolutions at extraordinary general meetings,
other than those called by the shareholders themselves. In order to requisition a
meeting, shareholders must have at least 10% of the paid up capital of the company.
Companies Act 1985, s 368.
43 Companies Act 1985, s 376.
44 Stapledon, Institutional Shareholders, pp 10613.
45 DTI, Shareholder Communications at the Annual General Meeting: A Consultative Document,
pp 3031, gives details of five in 1995.
46 It has been estimated that the cost of a separate mailing is likely to be up to 50,000 for
the majority of listed companies and for some in excess of 100,000. DTI, Shareholder
Communications at the Annual General Meeting: A Consultative Document, para 2.11. The
cost falls considerably if the requisition is received in time to be included with the notice
of the AGM. For this to be possible, however, the resolution will have to be formulated
in ignorance of the contents of the companys annual report. The DTI consultation
document, published by the previous government, addressed ways of reducing the cost
to requisitionists of proposing a resolution, but not of relaxing the qualifying
requirements. In fact, it suggests that the 100 average paid-up capital threshold be
raised to the equivalent of 100 in real terms in 1948 when the figure was set. DTI,
Shareholder Communications at the Annual General Meeting: A Consultative Document, para
2.22.
327
scope for members resolutions without exposing companies to fruitless

harassment by campaign groups with nominal holdings.47
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.
Consumer activism and the role of information

Customers in their purchase behaviour, at least in aggregate, influence the
nature of the goods and services that companies provide. More importantly,
for present purposes, they can have some effect on the wider social
consequences of the companys conduct, for example in relation to its
environmental or human rights record. By refusing to buy a particular
companys products, consumers threaten its profits. The restricted character of
the form of participation involved here should, however, be recognised.
Consumers are not parties to the corporate decision making process. Rather,
the effect of consumer behaviour is to alter the incentive structure within
which managements exercise their discretion. A rational response of a
management whose aim is to maximise profits will be to remedy the cause of
consumers concerns if the cost of so doing is less than the value of lost sales
and on-going reputational damage. More cynical responses, in the form of
obfuscation, cosmetic changes or alternative, image building expenditures are
also possible, however, as is a decision simply to tough it out.48
An important prerequisite for effective consumer action is access to
information about the companys activities and their impact. In the absence of
appropriate information, consumers will be unaware of corporate abuses and
unless the information available is sufficiently detailed and reliable it will be
impossible to identify which companies are the most serious offenders and
hence to ensure that consumer efforts are appropriately targeted. The social
disclosure requirements currently contained in the Companies Act are very
47 It has been suggested that the threshold should be ten shareholders holding an
aggregate of 10,000 shares, or one shareholder holding more than one per cent by
market value of the companys shares: PIRC, The AGM: A Focus for Shareholder
Involvement.
48 Herman, Corporate Control, Corporate Power, p 278.
328
limited, comprising a duty to disclose the companys policy on the

employment of disabled persons,49 information concerning arrangements for
securing the health and safety of the companys employees,50 and action
taken to inform and consult the workforce on matters of relevance to them as
employees and to promote employee share schemes.51 It is now common,
however, for companies to disclose information additional to that required by
law. The most popular subject for disclosure is the companys environmental
performance.52 According to recent research, 79 of the FTSE 100 companies
produced an environmental report last year.53 Helpful as the information
revealed may be, there are nevertheless significant drawbacks to voluntary
disclosure, particularly where reports are not independently audited. In an
earlier survey of environmental disclosure in the UK it was observed that the
majority of the information provided was selective and almost solely
concentrated on the positive aspects of a companys environmental
performance. Most disclosures would appear to have been public relations
driven, making it virtually impossible to derive a comprehensive picture of a
companys environmental record.54 There is accordingly a clear case for
imposing on companies that have a significant impact on the environment a
duty to disclose information on a standardised basis and to have the
information independently verified.55 This need not involve enormous
expense, since most companies already collect and analyse the relevant
information for internal management purposes.
Development of disclosure techniques in other areas of corporate social
performance, for example, in relation to employment policy in the companys
overseas operations, product safety, and equal opportunities is less
49 Companies Act 1985, s 234, Sched 7, Pt III.

50 Provisions for disclosure relating to health, safety, and welfare at work of employees
have been inserted into companies legislation (see, now, Companies Act 1985, Sched 7,
Pt IV), but the necessary regulations to bring them into force have never been
introduced.
51 Companies Act 1985, s 234, Sched 7, Pt V. There is no duty to do any of the things that
must be reported on. There is also an obligation to disclose charitable and political
donations. Companies Act 1985, s 234, Sched 7, Pt I.
52 A small number of companies report more widely. Eg, the Body Shop produces an
independently verified values report, detailing the companys record on
environmental, animal protection and human relationships issues.
53 KPMG, The KPMG Survey of Environmental Reporting 1997.
54 Kirkman and Hope, Environmental Disclosure in UK Company Annual Reports, p 21.
55 There is also a case for regulating claims made about the environmental properties of
particular products. The previous government proposed a voluntary code of practice.
DTI, Green Claims: Code of Practice, A Consultation Paper. It is also possible to take more
positive steps to stimulate green consumerism via schemes such as the European Union
Eco-label Award Scheme which provide assurances of good environmental practice in
the design and production of goods. Council Regulation 880/92 of 23 March 1992 on a
Community Eco-label and Award Scheme, OJ L35/1, 1992. See, generally, McIntyre,
Environmental labelling: clean conscience for the consumer or missed opportunity?.
329
advanced.56 There is no reason in principle, however, why companies could

not be made to report on all areas in which they have a significant social
impact.57 An alternative approach to formal publication of information is to
allow public access to company records. The organisation Social Audit
experimented in the 1970s with investigations into the operations of a number
of major companies, producing wide ranging reports on such matters as
employee relations, redundancies, pensions, race relations, overseas activities,
and the environment.58 External reporting of this kind might be a promising
way of increasing managerial circumspection and activating social pressure.
The role that campaign groups or social monitors59 can play in processing
information should also be mentioned. Raw social data is often meaningless
and needs to be analysed and placed in context before it enables consumers to
distinguish good companies from bad. Quantitative details about harmful
emissions, for example, obtain significance only with a background
appreciation of the effects of the material released in the quantity and in the
specific environment into which it is discharged.
As well as analysing and highlighting information about companies social
performance, campaign groups can also increase the effectiveness of
consumer action by organising boycotts of a particular companys products.60
The assurance that many other consumers are refusing to deal with the
company too, helps reduce the collective action problem associated with
ethical purchase behaviour. That is, in order to register disapproval of the
companys policies by buying a substitute product, I may incur additional
expense or the alternative product may be inferior in some way. Since I know
that my own individual purchase decision will have no material impact on the
company concerned, it will not be worth incurring the disadvantages of
buying a substitute unless I am confident that a sufficiently large number of
other customers will do likewise. The existence of an organised campaign can
create this confidence. Even so, customer boycotts tend to be successful only
where the issues are narrowly defined, and it is often difficult to sustain the
momentum on a continuing basis.61
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
Consumer action can, then, play an important part in controlling corporate

behaviour. Its potential should not be exaggerated, however. Many groups
affected by corporate externalities, for example, inhabitants of developing
countries whose way of life is disrupted by the extraction of raw materials,
have no market relationship with the company and hence no ability to put
pressure on management in the course of that relationship. Parties with whom
companies do enter into contracts possess limited altruism,62 and problems
over gaining access to, and interpreting information, even with improved
disclosure and social monitoring, mean that much of the impact of corporate
activity is likely to remain opaque. There is, therefore, and there is likely to
continue to be, a gulf between shareholder interests and those of other
affected parties. Behaviour which damages the well-being of the latter will not
necessarily be matched by a market penalty resulting in a corresponding
reduction in profits. A management owing an exclusive loyalty to
shareholders can thus not be expected always to act in ways consistent with
maximum social welfare. It might be recognised in this connection that a
companys licence to operate, referred to in the RSA Inquirys report,
Tomorrows Company,63 is a metaphorical and not a real licence, and the
consequences for the company of breaching it are not necessarily serious.
Pressure from other groups and consultation

The discussion has so far been confined to consumer participation, but other
groups that have market relationships with the company, namely, employees,
lenders,64 business customers,65 and suppliers, are potential participants in
company policy making too. The emphasis has been on market relationships
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
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
greater insights into the points of view of other parties, consultation

procedures are capable of producing an improved accommodation of
interests. Consultation does not in itself oblige managements to change their
position, however, and the ability of third parties to obtain concessions that
are contrary to the companys financial interests is likely to depend on their
bargaining power. The experience with the obligation to consult over
redundancies, which appears in general to have had little impact on
management decisions to shed labour,71 is not encouraging. But, it may be
noted that consultation procedures can also be structured in such a way as in
themselves to alter the respective bargaining power of the parties. This will be
the case where the obligation on the company is not merely to consult, but to
reach agreement, and a mechanism is provided to impose a solution if the
parties are unable to agree. Such an arrangement operates in Germany, where
works councils have co-determination rights in relation to social issues such
as working hours, health and safety, and personnel questions. 72 Works
councils also have important rights where the management proposes a major
change that will have an adverse effect on the employees, such as a plant
closure or restructuring. Management must agree with the works council a
social plan providing for the transfer of employees to alternative
employment or the making of severance payments. If the parties cannot agree,
the issue goes to arbitration, and the company must then either accept the
arbitrators decision or cancel the proposed changes. The possibility of an
externally imposed solution provides an inducement to the parties to reach an
agreement and may cause the company to make concessions that would not
otherwise be forthcoming.
Altering corporate objectives

It is not true, as is sometimes suggested, that if an appropriately long-term
view is taken, the shareholders interests and those of other affected groups
coincide. As noted above, damage inflicted on third parties is not necessarily
translated into an equivalent loss in profits to the company. It follows that
there is a case for amending directors fiduciary duties, which currently
require the board to act exclusively in the interests of shareholders, to allow
them to pay greater attention to the interests of non-shareholder groups.73 In
practice, directors duties do not constitute a serious barrier to conduct
designed to safeguard third party interests. The duty in question is a
subjective one, that is, the issue is what the directors consider not what a
71 Anderman, Labour Law: Management Decisions and Workers Rights, p 267.

72 Wooldridge, The system of co-determination in Western Germany and its proposed
reform, pp 2226.
73 See the qualification in fn 20 above.
333
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
Participation as an alternative form of regulation

Measures to increase the scope and effectiveness of non-shareholder
participation improving the flow of information, mandatory consultation,
and broadening directors fiduciary duties can be regarded as a form of
regulation of corporate conduct supplementary to more conventional
techniques.76 They are a response to limitations in the ability of traditional
legal controls to bring corporate behaviour into line with societys
expectations. 77 The problems include the inevitable delay in the legal
response to new sources of harm, deficiencies in the information available to
standard-setters, and the inability of law to educe the highest standards of
performance, as distinct from securing compliance with base line, minimum
standards. As well as problems of encapsulating desired controls in law, there
may be failures in the democratic process itself. Legislators may give
insufficient weight to the interests of those directly affected by damaging
corporate activities, for example, or otherwise pay too little attention to the
popular view. In the international context, the inadequacies of supranational
rule making and enforcement agencies and the laxity of local laws may mean
that companies are free to engage in conduct overseas which is regarded as
unacceptable in the companys country of origin. Increased participation may,
then, be seen as a means of compensating for the regulatory deficit that results
from these various shortcomings in the capacity of external legal rules to
modify anti-social corporate behaviour.
LONG TERM, CO-OPERATIVE RELATIONSHIPS

This section moves from a concern with reducing undesirable third-party
effects, to realigning the core relationships in the company. The purpose of so
doing is to increase the efficiency of the wealth creation process and the
welfare of the parties to it. The aim is to promote long term, co-operative
relationships, and the role of participation is to secure their integrity.
In its report, Tomorrows Company, the RSA Inquiry noted that, while
Britain had a few outstanding businesses, the average performance of UK
companies was significantly worse than that of its competitors. 78 The
Inquirys central recommendation to improve this position was that
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
companies adopt an inclusive approach to business relationships. That is,

they should pay greater attention to cultivating long term relationships with
employees, customers, and suppliers. While these are the key to competitive
strength, they are often subordinated in the drive to maximise short term
shareholder returns. The IPPRs Commission on Public Policy and British
Business reached a similar conclusion.79 Both bodies considered that an
inclusive approach was compatible with the existing shareholder model of
the company, so long as it was understood that the duty of the directors was
to advance the long term interests of the shareholders by developing the
wealth-creating potential of the business on a sustainable basis. This chapter
takes issue with that conclusion. The systems overseas in which co-operative
relationships have proved to be the most successful are those in which a
stakeholder model of the company prevails, and in which stakeholders
additional to shareholders are to a degree empowered within the corporate
structure. A brief sketch of the advantages of co-operative relationships
follows, and then the role of participation in upholding them will be
examined.
The advantages of co-operative relationships

The essence of a co-operative relationship is that it is beneficial to each party,
but that the full benefits do not accrue immediately. Rather, they flow over an
extended period. For either party to be willing to enter into such a
relationship, it must have some confidence, therefore, that the relationship
will endure, and that the value of its investment in the relationship will not be
diminished by the self-interested conduct of the other. As regards
relationships with employees, it is increasingly recognised that in the modern
economy the knowledge and skills of employees and effective team-working
are of central importance to competitive strength. 80 Providing credible
assurances of continuity of employment and paying genuine attention to the
welfare of their staff are likely to be crucial factors in enabling companies to
take full advantage of the wealth-creating potential of their employees. Thus,
if employees know that their jobs are secure they will consider it worthwhile
to acquire company-specific skills and undergo training more generally. They
are also more likely to co-operate with the introduction of new technology
and working methods, rather than attempt to undermine them. Furthermore,
employees who are treated as members of the organisation and not just
dispensable factors of production are liable to respond constructively and
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
81 See, generally, Williamson, The Economic Institutions of Capitalism: Firms, Markets,

Relational Contracting.
337
relationship will be sufficiently long lasting for the investment to be recouped,

and that the customer will not opportunistically seek to alter the terms of
trade once the supplier is locked into the relationship by virtue of having
made the investment. For the same reasons, a customer will not wish to
become dependent on a particular supplier without credible assurances of fair
dealing. Where a companys trading partners are prepared to make
transaction-specific investments it ought to be in a position to reap the
advantages of flexibility and reliability which are normally associated with
absorbing the relevant activity within the organisation itself. But, at the same
time, because the trading partner remains an independent entity benefiting
from high powered market incentives and avoiding the penalties associated
with an overly complex organisational structure, the stimulus for innovation
and cost-cutting, from which both enterprises should benefit, remains.82
Co-operative relationships and participation

What, then, are the implications of co-operative relationships for
participation? First, it is arguable that a model of the company in which
participation rights are enjoyed exclusively by shareholders is ill suited to
productive co-operation with other parties. It was noted earlier that the
dominant form of shareholder participation in the UK is via the market for
corporate control. While the value of the market as a disciplinary mechanism
is questionable, there is no doubt that it creates an environment in which
managers ascribe considerable importance to the companys share price. Share
price may, however, inadequately reflect the value to the business of its
relationships. Soft information about the quality of relationships may not be
fully communicated to the market and is difficult to evaluate. This problem
may at least in part be remediable through improved disclosure and appraisal
techniques,83 but to the extent that it persists, a management pursuing a
policy of shareholder value maximisation may be deterred from investing in
relationships the benefits from which accrue over the longer term.84 It may
also be possible for a company to increase its short term profits, and possibly
its share price, by reneging on implicit agreements, for example, by dropping
a regular supplier when substitutes can be obtained more cheaply elsewhere,
or by refusing to meet the urgent needs of a customer in circumstances in
which it may not be possible immediately to recoup the costs. Where such
82 See, further, Kester, Industrial groups as systems of contractual governance.

83 See RSA, Tomorrows Company, pp 13; and Institute for Public Policy
Research/Commission on Public Policy and British Business, Promoting Prosperity,
pp 11117.
84 This is an aspect of the short-termism debate. See, further, Marsh, Short-Termism on Trial
and Morris, The Stock Market and problems of corporate control in the UK.
338
behaviour can be anticipated, co-operative relationships are unlikely to

develop.85
A further problem is that an active take-over market increases uncertainty
about the future. Because there can be little confidence that long term cooperative relationships will be sustained through a change in control, entering
into them may be perceived to be too risky. The new management might have
entirely different plans about how to run the business, and may feel little
compunction about breaking understandings that are not legally binding, to
which they have not personally been a party. The high rate of executive
turnover associated with hostile acquisitions may also make co-operative
relations difficult to establish. As one commentator has noted, the success of
relational contracts founded on trust depends critically on preserving
continuity of identity of specific managers interacting at the trading
interface.86
Second, in the stakeholder economies, not only does shareholder
participation take the form of voice rather than exit, but shareholder voice is
balanced by the representation of other interests. The system of codetermination in Germany, for example, involving interlocking employee
participation through trade unions, works councils and representation on the
supervisory board, provides employees with some assurance that their
interest in employment stability will be taken seriously.87 It is also common in
Germany and Japan for companies in trading relationships to hold significant
stakes in each others equity. These holdings, which may also be accompanied
by board representation, serve to cement relationships and facilitate
information sharing.88 They may also deter opportunism, since a gain made
in the capacity of reneging customer or supplier may be lost in the capacity of
shareholder.89
None of this is to say that more successful relationships could not be
developed in this country without a transformation in the system of corporate
governance. Measures to promote co-operative relationships, such as the
adoption by companies of techniques to evaluate and report on the quality of
their relationships, are likely to have a positive effect.90 Nevertheless, there
are grounds for scepticism about whether the full benefits of co-operation are
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
realisable in a system in which the interests of shareholders are afforded an

overriding importance.91 The essence of the stakeholder approach is that the
parties with whom the company enters into co-operative relationships are
viewed non-instrumentally. That is, their interests are regarded as valuable in
themselves, and not merely as a means to the end of maximising the wealth of
the shareholders.92 This attitude creates the necessary level of trust, which is
then reinforced by participative arrangements. From this perspective the
company is not just the shareholders, but the various co-operating parties
together. The long term goal of the enterprise, rather than being to maximise
shareholder wealth, accordingly becomes to maximise the joint wealth of the
constituent groups.93
Such a model has disadvantages as well as benefits. Companies may, for
example, become locked into relationships with suppliers that no longer
adequately meet their needs, and labour market inflexibility may inhibit
restructuring and reduce the demand for labour. Whether the full benefits of
relational contracting could be obtained without also building in excessive
rigidity is unclear. If the UK did want to move in the stakeholding direction,
steps would need to be taken to reduce hostile take-over activity, to develop
an alternative source of management discipline,94 and to create mechanisms
for stakeholder participation. As to the last of these, in relation to employees a
system based on works councils rather than board representation might best
suit the British context.95 Customer and supplier participation on the other
hand is not something that can be mandated. It is only with particular
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
customers and suppliers that companies are likely to have stakeholder

relationships, and the best means of consolidating those relationships will
vary between individual cases. There may, however, be a case for reviewing
measures that restrict the accumulation of cross-shareholdings, to ensure that
companies that want to are nor prevented from supporting relationship
specific investments in this way.96
EMPLOYEE PARTICIPATION MORE BROADLY CONCEIVED

The case for employee participation considered in the previous section, aimed
at providing employees with a means of protecting the human capital they
have invested in the company, is a rather narrow one. There are, however,
numerous other arguments for employee participation that are more broadly
based and which call for more far-reaching rights. One stresses the subjection
of employees to managerial authority. Their position of subordination in the
enterprise distinguishes employees from the companys other constituencies,
and is used to justify full democratic participation by them in decision-making
in the firm.97 Another argument points to the importance of decisions made
by companies to the lives of their employees, and the democratic imperative
that those who will be substantially affected by decisions made by social and
political institutions must be involved in the making of those decisions.98 Yet
other arguments commend participation as a means of increasing selfrealisation at work, countering the alienation to which capitalist relations are
thought to give rise.99
It is not intended to pursue these arguments here, but to take a second
look at employee participation as a means of increasing employment stability.
It is suggested that the stakeholder analysis, at least when understood in
narrow, economic terms, does not fully capture the case for consolidating
employee interests in the company. From the stakeholder perspective, the
stake that participation is designed to safeguard is a legally unprotected
interest in obtaining a return on firm specific investments made by the
employee. Not all employees acquire stakes in this sense, however, and for
96 See Mayer, Financial systems and corporate governance.

97 Eg, Archer, Economic Democracy, ch 2; and Dahl, A Preface to Economic Democracy, chs 2
and 4. True democracy is not possible within the capitalist company. Co-determination
does not meet democratic criteria. As Oakeshott, The Case for Workers Co-ops, p 21,
points out: the essence of a democracy is precisely that all its members should be on the
same footing in crucial matters, such as choice of leadership. If an enterprise is
necessarily binary and two-sided that condition cannot strictly be met.
98 Commission of the European Communities, Employee participation and company
structure in the European Community (1975) EC Bull Supp 8/75, p 9.
99 Eg, Elster, Self-realisation in work and politics: the Marxist conception of the good life.
341
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
100 Williamson, The Economic Institutions of Capitalism, p 302.

101 Eg, Stone, Labour markets, employment contracts, and corporate change; and
OConnor, Restructuring the corporations nexus of contracts: recognizing a fiduciary
duty to protect displaced workers. For an argument that expectations created by
employers generate property rights in the firm for employees, see Singer, The reliance
interest in property.
102 Eg, Daniels, Stakeholders and takeovers: can contractarianism be compassionate?; and
Howse and Trebilcock, Protecting the employment bargain, p 751.
103 See, further, Collins, Organizational regulation and the limits of contract; Millon,
Communitarianism in corporate law: foundations and law reform strategies; and
Parkinson, The contractual theory of the company and the protection of nonshareholder interests.
104 Parkinson, The contractual theory of the company and the protection of nonshareholder interests, p 99.
105 There has, more generally, been a marked shift in returns away from employment
income and in favour of investment income. Ryan, Factor shares and inequality in the
UK.
106 Kay, Governance for success, p 73.
342
unemployed and to subsidise employment by supplementing the incomes of

those in work on inadequate pay.
Clearly, employees cannot be given guarantees of continuity of
employment. To do so might fatally damage the companys competitive
position. It would also act as a strong disincentive for companies to recruit
and might encourage them to transfer operations to jurisdictions that
provided lower levels of job protection. At the same time, however, there is
little reason to suppose that maintaining an entirely unregulated environment,
which leaves management free to respond to what may be damaging short
term pressure from the stock market or to implement the prevailing
management fad for down-sizing or re-engineering, is the only way in
which the companys long term future can be secured. As discussed in the
previous section, a degree of employment inflexibility may actually bring
benefits to the organisation. The negative effects can also be managed. A
leading German commentator has noted, for instance, that the system of codetermination has not in general damaged the efficiency of the enterprise.
German management has learned to plan for employment stability, and the
assurance of stability has in turn led to acceptance by the workforce of rapid
technological change, flexible work organization and high internal
mobility.107 Furthermore, to the extent that protecting employment involves
redistribution rather than an increase in the wealth generated by the
enterprise, it is important to remember that what is in issue is the distribution
of rents, that is, the surplus remaining after a market return has been paid to
each factor of production. A diversion of rents from shareholders to
employees need have no adverse impact, at least in the short term, on the
companys ability to compete in its product markets.108
It is suggested, therefore, that intervention to ensure that the interest of
employees in job security is taken seriously by management is a legitimate
objective of public policy. Implementation might take a variety of forms,
including higher redundancy payments, designed to force companies to
internalise more of the cost of lay-offs and, thus, to limit recourse to them,
more extensive union bargaining rights, covering investment policy and
manpower planning, and rights of participation through works councils on
the German model.109
107 Streek, Social and economic performance, p 159.

108 Teubner, Industrial democracy through law? Social functions of law in institutional
innovations, pp 26869; and Kay, Governance for success, p 76.
109 See, also, McCarthy, The Future of Industrial Democracy; Hall, Works councils for the
UK? Lessons from the German system.
343
CONCLUSION: PROTECTING PUBLIC SPACE

It was stated at the beginning of this chapter that the issue of participation in
company affairs arises because of the enormous social, economic, and political
power that companies possess. By extending rights of participation in
company decision making to groups additional to managers and shareholders
this power might be brought under greater social control. In particular,
participation might be used to reduce the harmful third party effects of
corporate activity and to rebalance the interests of internal constituencies in
the firm.
There is, however, another connection between corporate power and
participation. Here, the concern is not with opening company decision
making processes to wider participation, but with preserving political, social,
and cultural spheres as participative spaces free from domination by the
corporate sector and business values. In other words, as well as facilitating
participation in companies, attention should be paid to preventing excessive
participation by companies in the public space.
The pervasive effects of the decisions taken within companies were noted
at the beginning of this chapter. The level and location of employment, the
rate of economic growth, and the condition of the physical environment, are
substantially affected by the policies companies choose to adopt. That
companies should have power in relation to these issues is an inevitable
incident of the existence of large scale enterprise. However, it should also be
noted that the scope of corporate influence is currently expanding beyond
matters that are unavoidably linked to mainstream business activity.
Company involvement in areas such as education and community
programmes, and the growing presence of big business in the arts, media, and
sport, mean that the objectives pursued within these activities are increasingly
being shaped by the corporate sector. There is a danger that the intrusion of
the sphere of money and commodities into these other spheres will
undermine their distinctive character and values.110 At a more general level,
advertising and media manipulation, necessary to maintain an appropriate
level of demand for company products, promote a set of values that elevate
consumption above other, more community oriented forms of human
flourishing.111 And the power of business in the political arena creates a
second order problem, by narrowing the range of possibilities for regulating
corporate behaviour and for defining the boundaries of the corporate sphere
in line with popular preferences.
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
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
When control of our cultural symbols passes to corporations, we are essentially

yielding to them the power to define who we are.118
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.
118 Korten, When Corporations Rule the World, p 158.

119 See Parkinson, Corporate Power and Responsibility, pp 27181. Prior to modern
developments, for a transaction to be reasonably incidental to the carrying on of
business, which is the test for a transaction which is not expressly authorised by the
companys objects clause being intra vires, it was necessary that it should be directly
connected to the companys stated objects and not merely for the companys
commercial benefit: see, eg, Tomkinson v South-Eastern Railway Co (1887) 35 Ch D 675
(donation to railway company ultra vires, even though railway would carry passengers
to the donors place of business).
120 It is arguable currently that unless the company has as an express object the making of
political donations, it has no power to make gifts to political parties which are not tied
to some purpose closely connected with the companys business. Simmonds v Heffer
[1983] BCLC 298. See, generally, Parkinson, Corporate Power and Responsibility: Issues in
the Theory of Company Law, pp 27577.
347
CHAPTER 18
PARTICIPATION AND THE REGULATORY ORDER
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
THE UK MODEL OF UTILITY REGULATION

It is fair to say that three characteristics worked to limit the degree to which
participation was envisaged and encouraged in the legal structure adopted for
UK utility regulation. The first was the essentially economistic logic envisaged
for its operation. The second was the concentration on the bilateral
relationship between regulator and regulated monopoly to the exclusion of
other interests. And the third was the deliberate decision to neglect overseas
experience in regulatory procedures.
Procedural issues in the regulation of public utilities are examined at much greater
length in Prosser, Law and the Regulators.
349
The nearest we have to a blueprint for the design of utility regulation in

the UK is the Littlechild Report commissioned before the privatisation of
British Telecom.2 This very seriously underestimated the complexity of the
regulatory task. First, it saw regulation as essentially temporary. In a famous
phrase, Littlechild described the function of regulation as holding the fort
until competition arrived. In practice, however, much regulation is clearly
with us for the foreseeable future. Secondly, where regulation existed the
stress was on regulating monopoly power by attempting to mimic the effect of
a competitive market. Other functions of regulation, such as policing
competition and social regulation, were neglected. Thirdly, even the
regulation of monopoly was envisaged as a much more static and mechanical
process than that which actually has occurred. Thus, the price control formula
of RPI-X, by which prices were to be pegged to the Retail Price Index minus a
figure representing feasible efficiency gains, was seen as meaning that, outside
occasional periodic reviews, the regulator does not have to make any
judgments or calculations with respect to capital, allocation of costs, rates of
return, future movements of costs and demand, desirable performance, etc.3
In practice, all these considerations have had to be taken into account in the
regulatory decision making process, which has been continuous, not periodic.
This version of regulation influenced the model in which, rather than
participation, the economic expertise of the regulator became the basis of and
justification for her or his decisions.
Secondly, regulation was seen as essentially a bilateral bargain between
government and regulated firms, with third parties having at most a marginal
role. Some examples can illustrate this. First, the initial price control formulae,
now universally admitted to have been far too generous and designed to
assist privatisation rather than setting any real balance between firm and
consumer, were determined through bilateral negotiation between
government and regulated company. Other interests such as consumers were
not permitted to participate, despite requests by consumer groups to do so. It
can be convincingly argued that the most important part of the utility
regulators work since, and their biggest problem, has been the correction of
these over-generous formulae through the price control process.
Correcting the formulae is, however, in turn influenced by the second
example of the way the bilateral model worked, which is the procedures
adopted for modifying the licences under which the regulated firms operate.
These procedures include those for changing the price formulae as well as for
incorporating new conditions such as those limiting disconnection of supply
and, more recently, relating to fair trading. The details vary from case to case,
but in outline an amendment can be made if the licenced firm agrees, subject
2
3
Littlechild, Regulation of British Telecommunications Profitability.

Ibid, paras 13.14, 13.20.
350
Participation and the Regulatory Order
to procedures for the publication and receipt of comments by the regulator.4

However, these procedural duties come into play only after agreement has
been reached with the dominant firm so that a proposal can be publicised.
This is, of course, far too late to have any real influence on the substance of the
decision. If the firm does not agree to a proposal, the regulator can make a
reference to the Monopolies and Mergers Commission (MMC) and will be in a
position to impose a modification taking into account the Commissions
report. This cumbersome procedure has been used relatively rarely, though its
use has increased a little recently, most notably with the recent reference
relating to British Gass transportation and storage charges.5 However, the
key point is that the legal regime envisages a situation in which the licence can
be amended if the firm agrees, irrespective of the views of others. Moreover,
the appeal right of an MMC reference, though made at the initiative of the
regulator, will only be exercised when the regulated firm will not accept a
proposed licence modification and not, for example, at the instance of a
consumer group which objects to a change agreed between firm and
regulator. It has been argued that this restriction is part of an institutional
model which has provided a degree of certainty and regulatory credibility for
investors essential for the success of privatisation.6 This is doubtful given the
more tangible incentives presented to investors on privatisation, notably the
underpricing of shares, and neglects the importance of interests other than
investors who may be affected by the companys decisions. Nevertheless, it is
the model reflected in the law.
Thirdly, the model of regulation adopted was deliberately distanced from
experience elsewhere, especially from regulatory institutions in the United
States, which were seen by the Government as involving an over-legalistic
regulatory style and as leading to potentially disastrous involvement by the
courts in the regulatory process.7 As has been argued elsewhere, the US
process has much greater flexibility than this caricature suggests and has
important lessons for regulation on this side of the Atlantic.8 Nevertheless, it
was deliberately not used as the model for UK regulatory institutions and the
important participative provisions of the Administrative Procedure Act and of
specific regulatory statutes have no counterpart in general UK regulatory law.
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
THE ALTERNATIVE MODEL

The legal arrangements for utility regulation in the UK, then, suffered from an
oversimplified and economistic conception of the regulatory task, from an
unduly narrow bilateral conception of the regulators relationship with other
interests, and from a refusal to learn from overseas experience. Yet the
practice of regulators has been significantly different from what this legal
model would suggest. Indeed, it could be argued (with backing from
regulators speeches) that in practice a different, stakeholder model of
regulation has characterised at least some of the processes actually adopted.
This is only a partial form of participation and some interests have been
excluded. Nevertheless, it does suggest not only that the legal model was
inadequate to meet moral demands for participation, but that it was, in a strict
form, unworkable. As the water regulator has put it, after rejecting the concept
of a regulatory contract between regulator and regulated firm:
There should also be clarity about what are the proper objectives of the
business. The stakeholder approach may be able to cast some light in this area.
The privatised utilities may have paid too much attention to City matters
compared with other aspects of the business. Customers may have higher
expectations from a private profit making body than from a public
corporation.9
The implication is that a different style of regulation is required to reflect these

different perceptions.
The stakeholder approach has also played a part in recent critical literature
about regulation. Thus, it has been suggested in an Institute for Public Policy
Research report that regulators should pay explicit attention to the interests of
different stakeholder groups and adjust their regulatory instruments to ensure
that outcomes are not inconsistent with a desirable balance between them.10
The relevant stakeholders are to be business and residential customers,
shareholders, utility managers, market entrants, suppliers and other
companies dependent on utility industries, and employees in the affected
sectors. How has this new approach been reflected in regulatory practice?
Given the major differences between the different regulators, it will be best to
examine them sector by sector and then to consider overall patterns and
possible reforms.
9 Byatt, Speech at the European Policy Forum.

10 Souter, A stakeholder approach to regulation, p 43.
352
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
11 OFTEL, Improving Accountability, ch 4.

12 OFTEL, Annual Report 1984, para 1.27.
353
in particular cases be considered by the Director General to have less

probative value, and accordingly to carry less weight.13
Perhaps most innovatively (for the UK), future consultations would
incorporate a second consultation stage. After representations had been
received, the Director General would be prepared to receive further comments
on them within fourteen days. This was to enable there to be an opportunity
for review of comments made by others to assist analysis of the formal
submissions. A summary of submissions made and detailed reasons would
accompany the final decision. As well as these procedural developments,
selective public hearings were to be held.
The most important uses of these procedures so far have concerned the
1996 price control revision and the accompanying fair trading condition to be
incorporated into BTs licence, and the development of a policy on securing
universal service. In the first an initial consultation document of 68 pages was
issued in December 1995, followed by the double consultation described
above. A further document of 95 pages was published in March 1996, again
followed by double consultation and five open hearings held in different UK
cities. The hearings were opened with statements from OFTEL, BT, other
operators and then took views from the floor, and a summary record was
published as an annex to the next consultative document which appeared in
June 1996, again followed by double consultation. Final proposals were put to
BT and followed by statutory consultation by the end of July. One outcome
was the inclusion of an unfair trading condition in BTs licence, mirroring the
requirements of European Community law. Implementation is monitored by
a standing advisory committee of experts to which cases may be referred
either by the regulator or by the company. In the case of universal service,
consultation commenced in December 1994 with further documents in July
1995, December 1995 and February 1997. Apart from the consultation
procedures described above, five working groups of consumer and industry
representatives were established, a combined industry/consumer workshop
was held, and a consumer panel of residential consumer representatives
advised the Director General.
Two points are noticeable about the processes adopted in
telecommunications. First, they do permit a genuine degree of debate amongst
those consulted rather than simply asking for isolated input to be assessed by
the regulator. This is achieved by the double round of consultation and by the
(so far rather limited) use of hearings. Secondly, the process need not delay
decisions seriously. The decision about the far reaching price control
proposals took less than eight months. A more serious delay would have
taken place had BT had the matter referred to the MMC. Perhaps the best
13 OFTEL, Consultation Procedures and Transparency.

354
summary of the approach taken is from OFTELs response to the National

Audit Offices review of the work of the regulators:
The telecommunications and associated markets are very fast moving and
complex and include many different and conflicting interests. OFTEL could
not reach appropriate regulatory decisions without widespread and open
consultation of all concerned Consultations often aim simultaneously: to
obtain views of stakeholders; to involve stakeholders in the regulatory process
and to explain the process. In addition, part of the objectives may be to refine
the consultation process itself: seeking views from stakeholders on methods of
consultation.14
WATER AND SEWERAGE

The arrangements for participation in decision making by the Director
General of Water Services are radically different from those in
telecommunications. To a considerable degree this reflects institutional
structures, and particularly the arrangements for the representation of
consumers. The Director General is obliged to establish customer service
committees of which he appoints the members. The Committees are
responsible for reviewing matters affecting the interests of consumers and for
investigating complaints, and ten have been established. 15 An OFWAT
National Consumer Council was also established on a non-statutory basis,
comprising the chairs of the Committees and the Director General, who has
however now left it to highlight its independence and has recommended that
it be given statutory status. The Director General has expressed strong
support for this model of consumer representation as enabling a more direct
input for the consumer voice in monitoring company performance, and the
Committees played a particularly important role in the periodic review of
price controls in 1994.
In the periodic review, the Director General issued consultation papers
and commissioned market research into customer views. He also asked the
water companies to undertake their own consultations with customers. The
second stage of consultation involved the consumer representation machinery
described above. The Director General made the confidential business plans of
the companies and his draft determinations available to the Chairmen of the
Committees, and those Chairmen were present at the formal meetings
between him and the companies to hear representations from the latter. The
Chairmen were also given a further opportunity to comment. As a result, they
supported the outcome of the Review, and it has been suggested that the
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
consultation process was important in shaping it through moving the

emphasis from customer willingness to pay to the narrower criterion of
affordability, thereby limiting the ability of companies to charge more to
support investment schemes and other expenditure.16
A number of criticisms have been made of this consultation process; for
example, that it was used to inform the industry and consumers rather than to
create a dialogue, that the results of the consultations were not published as
such, and that too much discretion was given to the companies as to how they
organised their own consultations. It is intended that these criticisms will be
met in the process leading to the next periodic review in 1999, and the
Director General has indicated that he will lay greater stress on the exchange
of information as the review proceeds rather than receiving detailed
confidential submissions from companies at a late stage in the process. This
time The burden of proof will be on those wishing to impose confidentiality
restrictions on information to justify their decisions. 17 A fundamental
criticism made by the National Consumer Council is that the consumer
representation machinery is not independent of the Director General, and the
Public Accounts Committee has also made this criticism recently.18 Despite
the point, however, the involvement of the Committee Chairmen was an
important element in the process permitting extensive access to information
for them. It should not prove impossible to combine this with the sort of
developmental consultation used by OFTEL. A number of other consultative
processes have been organised by the Director General, for example, in
connection with reviewing methods of paying for water.19
THE ENERGY REGULATORS

The energy regulators have also taken steps to organise participative
procedures and to open up their decision making. According to the Trade and
Industry Select Committee, the consensus was that, although there is still
room for improvement, and the energy regulators are still not as open as
OFWAT and OFTEL, they are now more open about their decision making
process and publishing more information than in the past.20 The model of
16 Smith, Water service 1994: a watershed year, p 110.
17 OFWAT, The Business Planning Process, Customer Consultation and Information
Requirements for the 1999 Periodic Review.
18 National Consumer Council, Consumer Representation in the Public Utilities; Public
Accounts Committee, The Work of the Directors General of Telecommunications, Gas Supply,
Water Services and Electricity Supply, HC 89, 199697, p 3.
19 OFWAT, Paying for Water: A Time for Decisions; and OFWAT, Paying for Water: The Way
Ahead.
20 Trade and Industry Committee, Energy Regulation, HC 50, 199697, para 157 (footnotes
omitted).
356
consumer representation adopted in the case of gas is widely considered to be

the most satisfactory, and, indeed, has been proposed as a model for other
sectors.21 Rather than requiring the regulator to establish consumer protection
machinery, the Gas Act created a separate Gas Consumers Council to
investigate complaints and represent the consumers interest.22 Members are
appointed by the Secretary of State rather than by the regulator. The Gas
Consumers Council was able to achieve a high profile and survived a critical
review of its future by government, largely by contrasting its performance
with that of the less independent machinery in electricity.
Both the Directors General of Gas Supply have made public commitments
to be as open as possible in their decision making, but less ambitious steps
have been taken to implement this openness than in the case of OFTEL.
OFGAS has not published a formal management plan, although the Trade and
Industry Committee has now recommended that both it and OFFER should
do so.23 The consultation process has gradually improved. The first review of
the gas price formula was criticised because the regulator took the issue out to
consultation only after reaching agreement with British Gas (though this is all
the statute requires, as I have noted). However, more recent price control
decisions have involved the issue of several consultation documents, progress
reports and proposals setting out options, For example, in 1994 OFGAS
published 14 consultation documents and discussion papers relating to
changes to be introduced by the Gas Act 1995. Responses have been made
publicly available unless otherwise requested, and the views of British Gas
and of other participants in the consultation process have been summarised in
final OFGAS proposals. What does not yet exist is a procedure for debating
different inputs into the consultative process, either in the form of hearings or
of the OFTEL practice of a second round of comments on each consultative
stage, though something of this is achieved by issuing successive consultation
papers and inviting representations on each. A particular recent problem
concerned the extensive use of outside consultants made by OFGAS, as British
Gas complained about lack of access to consultants reports in the price review
process. However, summaries had been published with information removed
at British Gass request because of commercial confidentiality, so it was not
just OFGAS which could be accused of lacking a full commitment to
transparency.
The story has been similar in the case of electricity. In this case, the
consumer representation machinery is like that for water. The Director
General appoints regional Consumers Committees, though as a result of a
National Consumer Council inspired amendment to the Electricity Bill, a
21 National Consumer Council, Consumer Representation in the Public Utilities and Public
Accounts Committee, The Work of the Directors General of Telecommunications, Gas Supply,
Water Services and Electricity Supply, HC 89, 199697.
22 Gas Act 1986, ss 2, 32, 40, Sched 2.
23 Trade and Industry Committee, Energy Regulation, HC 50, 199697, para 160.
357
statutory National Consumers Consultative Committee was added,

composed of the Chairs of the Consumers Committees and chaired by the
Director General. A non-statutory Electricity Consumers Committees
Chairmens Group was established in 1993 to provide a national view in a
more independent way.24
There has been a substantial amount of criticism of the procedures
adopted by OFFER, more so than for the other utility regulators, which has
come both from the industry and from consumer groups. For example, the
Chief Executive of Yorkshire Electricity publicly criticised the lack of an
explanation of the calculations used in the Director Generals distribution
price review, whilst, according to the National Consumer Council, the
process of decision making in electricity price regulation has been distinctly
less open than for the other industries.25 Nor were the consumer committee
chairs used directly in price reviews as they were in the case of water. They
were instead expected to respond after the publication of proposals by the
regulator. A particular problem has been the absence of a forum in which
evidence submitted by others could be subject to challenge and criticism. This
was particularly important in the case of the 1994 distribution price review
which had to be withdrawn shortly before implementation after a companys
response to a takeover bid revealed that the Director General had been
seriously misled as to the financial resources of the electricity supply
companies. This point was made by the Trade and Industry Select Committee
which recommended that the regulator should be required to give reasons for
his decisions; that he should engage in more effective consultation, including
giving contributors to the consultation exercises the ability to comment on and
challenge each others evidence; that a forum be set up in which he be
required to explain his activities; and that an appeals or arbitration procedure
be set up.26 The recommendations mirrored some of the evidence which the
Committee had received. National Power, for example, argued that:
the Regulator would have a better opportunity to weigh the evidence being
put forward if contributors were able to comment in advance of a decision
being taken on other parties submissions In some cases, consultation
exercises based on written submissions will not be enough. Some public
hearings may be necessary, although for some this may be moving too close to
the US system.27
24 Electricity Act 1989, ss 2, 46, 51, 53, Sched 2.

25 Chatwin, The companies interest, pp 4447; and National Consumer Council, Paying
the Price, pp 7677.
26 Trade and Industry Committee, Aspects of the Electricity Supply Industry, HC 481,
199495, para 96.
27 Ibid, Minutes of Evidence, pp 7677.
358
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
SOME OTHER REGULATORS

As the above discussion shows, there is much variation in practice between
the different regulators, with OFTEL being by a considerable margin the most
sophisticated in the arrangements it makes for participation in its decision
making. Nevertheless, there is some degree of consistency in that none of the
regulators see the limited statutory consultation as adequate, and there is
considerable stress on the need to include other interests, or stakeholders,
apart from the dominant regulated firm, in the consultation process which has
become the main participative device used by the utility regulators. The
acceptance of some sort of due process is not limited to the examples
discussed above. For example, the Rail Regulator has issued a large number of
consultation papers and received responses on them, and he has also used
formal hearings where major issues are raised in consultation relating to
passenger service access, though these have taken place in private. Moreover,
the Independent Broadcasting Authority was notorious for its lack of any
structured procedures in making allocation decisions,29 but its successor, the
Independent Television Commission, has accepted that they are necessary
and has consulted before making such decisions though publicising in
advance the parts of the applications concerned with proposals for services
28 Trade and Industry Committee, Energy Regulation, HC 50, 199697, para 162.
29 Lewis, IBA programme contract awards.
359
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
30 R v Independent Television Commission ex p TSW Broadcasting Ltd [1996] EMLR 291; R v

Independent Television Commission ex p Virgin Television Ltd [1996] EMLR 318.
31 Baldwin, Regulating the Airlines, pp 14359.
32 Council Regulation 2407/92, 23 July 1992; OJ L240/1, 1992.
33 Harden and Lewis, The Noble Lie; and Prosser, Law and the Regulators, pp 27786.
34 For some of the reform proposals, see Graham, Is There a Crisis in Regulatory
Accountability? For the review, see Beckett, Speech for Utilities 2000 Conference: Review of
Utility Regulation and Department of Trade and Industry, Margaret Beckett Announces
Review of Utility Regulation. The Green Paper setting out the possible reforms under
consideration is A Fair Deal for Consumers: Modernising the Framework for Utility
Regulation, Cm 3898.
360
proposed changes would permit new forms of participation. A well known

proposal is to replace the highly personalised model of individual Directors
General, in whom legal powers are directly vested, by commissions of the
kind familiar from the US and, indeed, from other British examples such as
the Independent Television Commission or the Civil Aviation Authority. The
advantage of such a model is that it is an admission that regulation involves a
plurality of approaches and of different skills, and that membership should
reflect this. What would not be desirable, however, would be the appointment
of members of a regulatory commission to represent different interests, such
as those of consumers, employees, and suppliers, as this would be a recipe
both for regulatory paralysis and for the resolution of conflicts being obtained
through closed bargaining within the commission when these should be
worked out in the open through consultation procedures. A milder form of
the same proposal is that regulators be assisted by panels representing
particular interests, such as consumers or competition specialists. As we have
seen, this has already occurred in the case of telecommunications. The key
point is that the input of such panels is subject to scrutiny as part of wider
debate, including other interests.
It was suggested early in this paper that the appeal right to the MMC on
the part of the regulated company when the Director General wishes to
modify licences was the strongest expression of the early bilateral conception
of regulatory relations and was inappropriate to a stakeholder approach. An
alternative model which could be borrowed for this purpose was that
included in the last governments dropped Bill for competition reform. It
included a tribunal to hear appeals in cases concerning non-competitive
agreements. Such appeals could be made by anyone with a sufficient interest
or who represents persons with a sufficient interest, thereby giving relatively
wide rights of standing similar to those in judicial review. Consumer groups
would also be permitted to participate in the tribunal process and proceedings
would normally be in public. The new Government has also made similar
proposals for a tribunal of the proposed Competition Commission, including
the wider standing rights.35 This would provide a better model than the
existing arrangements for an MMC reference, and revised appeal mechanisms
are canvassed in the current DTI review of regulation.
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
out of place in discussion of one particular area of regulation. What we have

seen in the work of the utility regulators is something slightly different which
makes the case even stronger. It is a move away from a legal structure which
had only limited participation requirements and, indeed, in some respects
discouraged participation, to a practical structure which is coming to
encourage it through voluntary experiments in procedural design. This is a
partial process. As I have shown, it varies considerably between different
regulators and still excludes important interests. For example, it is arguable
that the victims of privatisation and of regulatory change have been the
workforces of the utility companies, the membership of which has been
drastically reduced. They have had virtually no role in the processes
described.
Despite these limitations, the experience I have described seems to suggest
that, contrary to expectations when the utility regulation schemes were
created, participation is a functional necessity for effective regulation. This
would be the case even if the functions of the regulators are seen as essentially
economic, for taking market-mimicking decisions is itself not a science, but an
art involving assessment of highly controversial data relating to acceptable
rates of return and potential efficiency savings. The only effective way of
testing this data is through the creation of fora, either in the form of hearings
or of the exchange of documents, in which debate can take place. However, it
has become apparent that regulatory tasks are not limited to the economic.
Universal service, for example, involves the use of social based argument
which is also controversial and needs a forum of this kind for its assessment.
I have suggested elsewhere that the major task facing utility regulation at
the current time is that of developing social principles such as universal
service and that these can drawn from the notion of public service in other
jurisdictions. Encouraging moves in this direction are taking place at EC
level. 36 In other words, substantive principle as well as procedural
development are required. However, in the absence of effective participatory
arrangements for the development of such principles by government and
regulators, they will be stillborn, for substantive principles presuppose
participative procedures for their development. I hope that my account of the
work of the regulators will go some way to illustrate this.
36 Prosser, Law and the Regulators, pp 2730, 28792.

362
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404
INDEX
Abrams, Philip,
203, 204, 205, 206
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
Affective constitutional culture,
8889
Africa, political participation,
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
Bail, right of court to grant,
257
Bank of International
Settlements (BIS),
169
Banking systems, civil society,
AGMs (Annual General

Meetings),
Altruism,
Automobile Association,
BCASPP (British Code

of Advertising and
Sales Promotion Practice),
3435
311
42
313, 315
Belgium
consumer groups,
European environmental policy,
317
168
Bird, John,
180
BIS (Bank of International

Settlements),
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
British Retail Consortium,
312, 313
British Standards
Institution (BSI),
299, 310
British Telecom (BT),
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
BSA (British Social

Attitudes) surveys,
90, 107, 108
BSI (British Standards

Institution),
299, 310
BT (British Telecom),
350, 354
Bullock Report,
on industrial democracy,
213
405
153
Cadbury Committee,
on corporate governance,
Canada
human rights,
legal autonomy,
Cannan, Edwin,
Civil Aviation Authority,

322, 326
256
215
58, 61, 65
CAP (Code of Advertising

Practice Committee),
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
Citizens Rights Office (CRO),
108
Citizens Service,
210
City Technology Colleges,
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
Citizens Advice Bureaux,
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
Community Service Volunteers,

Company law,
186
1723
Competition policy,
89
Comptroller and Auditor

General (CAG),
245
Conception, assisted, ECHR, and,
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,
Consumers International (CI),
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
Consumer Policy Committee

(CPC), BSI,
Consumer representation,
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
local self-government,
participation improvement,
social market economy,
3
29
25
Courts, ECHR, and,

CRO (Citizens Rights
Office),
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,
Deportation, ECHR, and,
252
Derrida, Jacques,
137
Detention, ECHR, and,
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
DTI (Department of Trade

and Industry),
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,
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,
Eastern bloc countries

dissident movements,
decay of,
socio-economic rights,
voluntary sector in,
See, also, Soviet Union
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
ECB (European Central Bank),
169
ECHR (European Convention

on Human Rights)
assisted conception,
257
breach of contract, freedom
from imprisonment,
264
British law,
incorporation into,
79, 25152, 266
causes of action,
26063
courts,
26063
fascism,
161
408
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
EOC (Equal Opportunities

Commission),
261
EP (European Parliament),
160, 164,
170, 171, 236
Equal Opportunities
Commission (EOC),
Equality,
ETUC (European Trade Union
Conferation),
ECSC (European Coal and Steel

Community),
24, 25, 171
Efficiency policy,
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,
168, 169, 170

310
84
409
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
subsidiarity,
as system,
Third World countries,
worker participation,
European Central Bank (ECB),
142
62
157
15256
169
European Coal and Steel

Community (ECSC),
24, 25, 171
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
European Disability Forum,
166
European Federation
of Green Parties,
163
European Forum
of Child Welfare,
166
European Monetary Union

(EMU),
European Parliament (EP),
162
European Socialists, Party of,
162
European System
of Central Banks,
169
European Trade Union

Confederation (ETUC),
66
European Union
See EU (European Union)
European Works Councils,
155, 156
Expression, freedom of,
254
Extradition, ECHR, and,
252
139, 161, 163
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,
European Peoples Party,
168,
169, 170
160, 164,
170, 171, 236
Factions
See Fiefdoms
Fairness doctrine,
Family, decline of,
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
Financial systems, sound,
36
Fontainebleau, summit at,
151
Food Standards Agency,
239
France
EU, and,
Vichy regime,
170
234
79
Fried, C,
271
FTSE 100 index,
329
Fukuyama, Francis,
Fuller, LL,
Future of Voluntary Sector,
Commission on,
Galbraith, JK,
Gas regulation,
410
144, 145, 175

281
11, 12, 19
144, 273, 275

356
Index
Geddes, Mike,
11516
General Agreement on Tariffs

and Trade (GATT)
See World Trade Organisation
Germany
citizenship,
employees,
EU,
European environmental
policy,
Federal Constitutional
Court,
judiciary,
Nazism,
R and D spending,
volunteer activity,
works councils,
Gewirth, Alan
choice,
community,
legal autonomy,
playing the market,
publicly recognised rights,
social and economic rights,
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
Gladstone, William Ewart,
184
Good Neighbour Schemes,
204, 205
Greece
policy,
168
26
Greenbury Committee,
on corporate governance,
326
Greenpeace,
261
8387, 84,
9295, 92, 95
Group of Eight (G8),

Guardianship enclaves,
Guilds, mediaeval,
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,
80, 85, 87,

89, 95, 97, 206
6162, 205
Home Office Community

Development Projects,
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
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,
ICCPR (UN International

Covenant on Civil
and Political Rights),
ICNPO (International
Classification of Non-profit
Organisations),
IGC (Amsterdam
Inter-Governmental
Conference),
Illich, Ivan,
ILO (International Labour
Organisation),
IMF (International
Monetary Fund),
Independent Broadcasting
Authority,
359
Independent Television
Commission,
361
India
autonomy,
equality in,
Individualism,
67
47
4547
5867
4546, 6869
5255
6973
6869
4851
5255
5867
5657
4851
See, also, Grid-group theory

Industrialisation,
194, 195
262, 308
Institute for Public Policy

Research (IPPR),
336, 352
International Classification
of Non-profit
Organisations (ICNPO),
194, 195
International Covenant
on Economic, Social
and Cultural Rights,
International Labour
Organisatio (ILO),
16, 22, 173

169
International Settlements,
Bank of,
169
310, 311
Internationalism, growing,
23943
Intervention,
regulation distinguished,
5867
IPPR (Institute for Public

Policy Research),
177
16, 22, 173
Iron Curtain countries

See Eastern bloc countries
169
213
International Monetary Fund

(IMF),
Ireland
European
environmental policy,
See, also, Northern Ireland
140, 155
17
Injunctions,
International Standards
Organisation (ISO),
252
10, 3337,
8487, 269
221, 224, 268

80
222, 225
9
25
ISO (International Standards

Organisation),
412
336, 352
168
310, 311
Index
Italy, European
environmental policy,
168
Japan
R and D spending,
339
18
Johns Hopkins
Comparative Non-profit
Sector Project,
236
Judicial Studies Board,
249
Judiciary
autonomy,
Circuit judges,
High Court judgeships,
Recorders,
21520
237
236
237
23637
Just satisfaction test,
262
Justice
natural,
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
Law and order,
36
Laws, Sir John,
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,
Liberty (National Council

for Civil Liberties)
Bill of Rights,
ECHR, and,
Mandamus orders,
413
15, 20
243
13
102
56
6
172
255, 262
Manpower Services
Commission (MSC),
Market, playing the,
Markets
consumers,
democracy,
merger of private
and public,
private, public critique of,
public, private critique of,
values of,
Meade, JE,
Metropolitan Authorities,
Association of,
for Volunteering,
186, 195
National Consumer Councils,
296
17
6869
4851, 71
5255
27475
177
50, 52
178
313, 355,
356, 357, 358
National Consumers
Consultative Committee,
National Council of Voluntary

Organisations (NCVO),
104
National Lottery
Charities Board,
185
195
Mill, JS,
18
National Trust,
Monetarist
economic policy,
351, 354, 361

291
52, 16869
169
Monnet, Jean,
139,
171, 172
Montesquieu,
Charles Louis
de Secondant, Baron de,
MORI opinion poll,
Socioconsult Programme,
MSC (Manpower Services
Commission),
Mulgan, Geoff,
National Audit Office,

National Centre
11, 104
Nationalism,
306
Monetary Committee, EC,
Monopolies and Mergers

Commission (MMC),
11, 23
National Farmers Union,
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
351, 354, 361
247
88, 107
90
186, 195
17576
355
143
Natural justice,
8, 9, 10
NCVO (National Council

of Voluntary
Organisations),
11, 23
NDPBs (non-departmental
public bodies),
102
Negative human rights,
32, 33, 68,

26772, 280
Neighbourliness,
Neo-liberalism,
20205
5255
New Public Management

(NPM),
19
New Zealand, NPM in,
19
NGO (non-governmental
organisation),
Nolan Committee,
North American
Free Trade Association,
261
192, 239
7
Northern Ireland, community,
178
Northern Ireland
Consumer Council,
317
Nozick, R,
68
NPM (New Public Management),
19
414
Index
OECD (Organisation
for Economic Co-operation
and Development),
OFFER,
civil society,
communities,
constitutions,
7, 89, 169
consumers,
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
Office of Fair Trading

(OFT)
ASA,
business community,
interests of,
Codes of Practice,
consumer legislation,
court action,
public bodies,
OFGAS (gas watchdog),
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
Open Space Society,

Organisation
for Economic Co-operation
and Development (OECD),
Pacta sunt servanda,

Pareto, Vilfredo,
optimality theory,
Parliamentary sovereignty,
Parry, Geraint,
Participation
affective dimension,
autonomy,
behavioural dimension,
bottom-up process,
case studies,
11
2829
12223
30108
11335
24
48
41
10112
3941
11718
27, 335,
34962
8990
30817
23437
risk perception,
self-regulation,
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
Party of European Socialists,
162
Passivist attitudes,
UK people,
10112
Pateman, Carole,
19798
Pension funds,
415
20, 24
Pensions Ombudsman,
Philanthropy,
244
184, 191, 20304
Pigou, AC,
4950, 53,
55, 5859,
60, 61, 65, 67
Pinochet, General,
250
Pitkin, Hanna,
14546
Plain English Campaign
317
Plant, R,
270, 278, 279
Pluralism,
13, 146,
162, 166
Poland, fall of Communism,
80
Political processes,
participation and,
3941
Political rights,
26768
Politics, community,
17581
Portugal
Positive human rights,
168
26
32, 68,
26772, 280
Post Office Users
National Council,
353
Price control formulae,

utility regulation,
350
Priority Estates Project (PEP),
12829
Privacy, limitations on,
254
Public Accounts Committee,
356
Public Appointments,
Commissioner for,
239
Public Assistance Authorities,
207
Public authorities, ECHR, and
25960
Public goods,
Public interest,
consumers,
Public space, protection of,
Public Standards,
Commissioner for,
Putnam, Robert,
Quangos (non-governmental
organizations),
18, 3536, 5354

297, 299
34447
239
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
Retail Price Index,
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
Royal Automobile Club,
300
Royal Commission
on the Poor Laws (190509),
207
Royal Society of Arts (RSA),
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,
voting rights, exercise of,
194
143, 144,
Shumer, Sara,
145, 149
Single Regeneration
Budget (SRB)
programmes,
106, 144
79, 14243, 236
98
Scott Committee,
on arms to Iraq,
102, 217, 247
Scott, Sir Richard,
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
Social Exclusion Unit,

Social and industrial life,
participation and,
Social Justice Commission,
356, 358
323
Social market economy,
177
1516
152, 153
2527
Social Security Appeal

Tribunals,
90
Self-incrimination,
ECHR, and,
253
Social Services Inspectorate,
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
social and political life,

participation in,
16
threats to,
174
welfare economics,
278
See, also, Human rights; Negative rights;
Positive rights
Solidarity, EU,
South Africa,
Sovereignty of Parliament,
Soviet Union
gerontocratic nature,
grid-group theory,
Spain
417
15052
25
255, 256
82
85
policy,
Sponsored participation,
116, 118
SRB (Single Regeneration

Budget),
3, 125,
13031
Stakeholding
company law,
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
Taxes, willingness to pay,
90
Teaching and Enterprise Councils,
177
Teague, Paul,
152
Telecommunications,
Telecommunications
Advisory Committees,
Teubner, G,
Thatcher,
Lady Margaret,
The Netherlands
consumer groups,
Thoreau, Henry David,

Tomorrows Company,
Centre for,
Trade and Industry
Select Committee,
Trades Union Congress
(TUC),
Trades unions
British people,
decline in participation,
elective democracy,
employee rights,
public sector,
stakeholders,
168
26
40
21, 331,
33536
356, 358
19, 24, 332
108, 111
189
103
23
105
19
Training and Enterprise

Councils (TECs),
6, 121
Tribunals, ECHR, and,
26063
Trust, constitutional order,
9195,
TUC (Trades Union

Congress),
Turnbull, Colin,
19, 24, 332

85
Tusa, John,
177
Ultra vires,
245, 347
152, 15354
Take-overs,
TECS (Training
and Enterprise Councils),
policy,
168
26
Unfair Terms in Consumer

Contracts Directive,
Unger, RM,
UNICE (Union of Industries
of the European Community),
Unipart,
6, 121
35355
353
69, 71
United Kingdom
autonomy, judicial,
constitutional reform,
decline in participation,
ethnic groups in England,
EU and,
76, 103, 172, 193
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,
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
United Nations Convention

on the Rights of the Child,
253
United Nations International

Covenant on Civil
and Political Rights
(ICCPR),
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,
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
Val Duchesse principle,
153, 154
Venice Conference
on Human Rights,
29, 221
Verba, Sidney,
86, 101
Vienna Conference
on Human Rights (1993),
221
Volk (common people),
158, 159
Voluntary Aid Committees,
207
Voluntary Service Overseas

(VSO),
186
Volunteer Centre UK,
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
VSO (Voluntary Service Overseas),
186
Wales, assembly in,

Wallace, Helen,
Water regulation,
Weiler, Joseph,
Welfare economics,
Welfare systems,
Welfare to Work programme,
Wildavsky, Aaaron,
419
79, 173
151
35556
138, 143, 145
278
38, 4851
186
83
Williamson, OE,
Womens Royal Voluntary
Service (WRVS),
Woolf Committee,
57
193
231, 237,
World Trade Organisation

(WTO),
7, 24, 292
WRVS (Womens Royal

Voluntary Service),
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

(David Campbell, David Campbell) Promoting Participation

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(David Campbell, David Campbell) Promoting Participation

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Promoting Participation:

First published in 1999 by Cavendish Publishing Limited, The Glass House,

All rights reserved. No part of this publication may be reproduced, stored in a

Promoting participation: law or politics

ISBN 1 85941 483 4

Printed and bound in Great Britain

1 THE CONSTITUTIONAL IMPLICATIONS OF PARTICIPATION

2 PARTICIPATION IN CIVIL SOCIETY

3 THE HYBRID CONTRACT AND THE MERGING

4 A CONSTITUTIONAL CULTURE FOR MORE PARTICIPATION:

5 PARTICIPATION AND PASSIVITY: NO ROOM AT THE TOP

6 PARTICIPATION AND LOCAL GOVERNMENT

7 CONSTITUTIONALISM, DEMOCRACY AND PARTICIPATION

10 CHARITY AND PHILANTHROPY: TOWARDS

11 PARTICIPATION AND VOLUNTEERING

12 PARTICIPATION AND LEGAL AUTONOMY

13 THE SEPARATION OF POWERS IN THE CHANGING

14 THE HUMAN RIGHTS ACT: AN ASSESSMENT OF

15 THE CASE FOR SOCIAL AND ECONOMIC RIGHTS

17 PARTICIPATION AND CORPORATE GOVERNANCE

18 PARTICIPATION AND THE REGULATORY ORDER

See Treaties: Amsterdam 1997, draft

Council of Europe Charter

Beijing Statement on Judicial

Council Regulation 2407/92,

Bill of Rights (Canada) . . . . . . . . . . . . . . . . . 215

Courts and Legal Services

Criminal Justice and Public

224, 241, 250

Earth Summit, Rio

See Rio Declaration on Environment and

Case of Proclamations 1611 . . . . . . . . . . . . . 214

ECHR (European Convention

Charity Act 1990 . . . . . . . . . . . . . . . . . . . . . . . 208

Charity Act 1993 . . . . . . . . . . . . . . . . . . 184, 208

Art 5(1)(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . 254

Charter for Fundamental

Art 5(1)(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . 252

Art 8 . . . . . . . . . . . . . . . . . . . 252, 254, 257, 262

Citizens Charter 199697 . . . . . . . . 34, 8, 105,

Art 8(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 254

Commission White Paper 1994 . . . . . . . . . . 154

Companies Act 1985

Companies Act 1985

Companies Act 1985

Protocol 4 . . . . . . . . . . . . . . . . . . . . . . . 252, 264

Competition Bill 1999 . . . . . . . . . . . . . . . . . . . . 8

Electricity Act 1989

Consumer Credit Act 1974 . . . . . . . . . . . . . . 291

Consumer Protection Act 1961 . . . . . . . . . . 291

s 46, Sched 2 . . . . . . . . . . . . . . . . . . . . . . . . . 358

Consumer Protection Act 1987

s 51, Sched 2 . . . . . . . . . . . . . . . . . . . . . . . . . 358

s 53, Sched 2 . . . . . . . . . . . . . . . . . . . . . . . . . 358

Agreement in Social Policy . . . . . . . . 151, 154

See Treaties: European Union 1992

Official Secrets Act 1989 . . . . . . . . . . . . . 25657

European Union, Business

See Treaties: Paris 1951

Police and Criminal Evidence

Fifth Company Law, draft . . . . . . . . . . . . . 153

Railway (Fires) Act 1905 . . . . . . . . . . . . . . . . . 54

Railways Act 1993