The Case Against Constitutional Reform

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Cited authorities 2

Cited in

Date	01 December 1998
DOI	http://doi.org/10.1111/1467-6478.00101
Published date	01 December 1998

Proposals for constitutional reform in the United Kingdom are examined

critically. Ideas of ‘governance’ as posited by various accounts in the

literature of politics are compared with the simpler idea of ‘government’

that is predicated within the reform programme. It is argued that changes

in the site of public power, as well as in the reality of its exercise through

a range of bodies beyond the traditional state, now provide a much more

complex situation than the reform programme acknowledges. The paper

calls for the development of a new technology of constitutional control

to capture fugitive power. The paper concludes with a brief examination

of some newer theories of radical or participatory democracy and their

potential to assist in a wider project of constitutional renewal.

THE CONSTITUTIONAL REFORM PROJECT

‘If we want things to stay as they are, things will have to change’

Guiseppe Thomasi di Lampedusa, The Leopard

Constitutional reform in the United Kingdom is traditionally an incremental

process of informal change to an informal structure – even when it appears

in a radical version as in the Thatcher years. Given this, it may be only a

slight exaggeration to describe Tony Blair as the most far reaching, radical

reformer of the formal ediﬁce of the constitution since Oliver Cromwell. The

ambition and scale of the Labour government’s reform project is as remark-

able as its speedy implementation. The Blair programme provides for

detailed, institutional change to transform and ‘modernize’ government in

* Professor of Jurisprudence, School of Law, The Queen’s University of

Belfast, Belfast BT7 1NN, Northern Ireland

The origins of some aspects of this paper lie with an inaugural lecture given at The Queen’s

University of Belfast in February 1998. A part of the argument was developed at the Socio-

Legal Studies Association conference in Manchester in April 1998. The author would like to

acknowledge all those who made useful comments and suggestions including Tom Hadden,

Elizabeth Meehan, Colin Harvey, and Thérèse Murphy – although of course they do not

necessarily approve of everything here.

510

JOURNAL OF LAW AND SOCIETY

VOLUME 25, NUMBER 4, DECEMBER 1998

ISSN: 0263–323X, pp. 510–35

The Case Against Constitutional Reform?

JOHN MORISON*

Britain. The election promises of a human rights act, devolved government

for Scotland and Wales, an elected authority for London, freedom of infor-

mation legislation and House of Lords reform have been given formal

expression within a year of the election. Other, more long-term reforms to

aspects of the constitution are being advanced through, for example, the

Neill committee on party funding, the Jenkins commission on proportional

representation and the working group on the modernization of the

monarchy. There have been unexpected and more indirect reforms too.

Immediately after the election the Chancellor of the Exchequer announced

the effective independence of the Bank of England, a move Nigel Lawson

described as a far more useful reform than any advocated by Charter 88. It

was the Chancellor again who one year later fundamentally changed the

way in which the business of government is conducted through a reform in

the way in which the public expenditure round is organized.

Standing above all of these modiﬁcations to the structures and processes

of government there is the apparent triumph of the Northern Ireland peace

process. This is an historic effort at removing the Irish from British politics

– if not yet the British from Irish politics. In many ways, and in direct

contrast to the pattern of other reforms, it is a political act represented as

a constitutional one. Nevertheless, from a general, British perspective its

chief importance lies in its contribution to the general idea of constitutional

settlement in the traditional grand style, whereby political arrangements are

given institutional form.1

So what is wrong with the general package of reform as outlined and

implemented by the government to date? Is it simply, as William Hague has

tried to argue, that it is unprincipled? The Conservative Party leader criticizes

government plans as ‘a ragbag of dangerous and destructive reforms’ that

undermines the history, traditions and identity that go to make up ‘our

unique Britishness’. For Mr Hague, ‘Labour has embarked on a journey of

constitutional upheaval without a route map’.2

It is true that the proposals for reform may be a little light on theory,

especially in so far as the pre-election promise to make an early declaration

setting out the principles behind the programme has not yet been honoured.

511

1More interestingly, however, there is another agenda underneath the high politics of political

compromise and the formal institutions of the 108-member Assembly, the British-Irish

Council, and the power-sharing executive. The range of ways in which a strong equality

agenda is implemented through legal mechanisms, policy appraisal systems, and partnership

mechanisms, as well as some of the already existing techniques for getting the business of

government done without recourse to politics, provides a genuinely new way of approaching

old issues. As will be suggested throughout, it is this new constitutionalism of process, partner-

ship, and value (retained in the settlement in part to provide a direction in case the main

project fails) that perhaps signals the way in which a new and richer approach may develop

more generally.

2W. Hague, ‘Change and Tradition: Thinking Creatively about the Constitution’, speech to

the Centre for Policy Studies, 24 February 1998 available at

party.org.uk/> (visited on 27 April 1998).

Nevertheless, the document which contained that promise does refer to the

aspiration that the objectives of the British Constitution should be:

to secure a government that is democratic and a society that is open and free. Democratic

government should ensure that those who hold power in the name of the people are

accountable to the collective wishes and interests of the people. Each individual citizen

should have equal rights and responsibilities in an open society where the aim is to

guarantee civil liberty, social cohesion and economic opportunity.3

Much of this may seem to be at a level of generality where it appears only

as an afﬁrmation that the Labour government are ‘for virtue and against

sin’. However, a more careful parsing of this paragraph does identify the

basic values of liberty, openness, representativeness, accountability, and

equality as well as a recognition that some of these values may have a

material dimension.

The problem with the Labour government proposals is that they are

wrongly focused on the traditional agenda of restraining ‘big government’

and shoring up traditional ideas of representative government. Proposals,

however well intentioned, about restoring representativeness to the regions,

revitalizing Parliament, and ensuring accountability and openness in

Westminster and Whitehall are missing the point. Even when such reforms

are secured by a new, more emphatic rights approach (in either the consumer

rights version preferred by Mr Major’s Citizen’s Charter or the human rights

version from the European Convention on Human Rights offered by Mr

Blair) they do not represent anything more than a very modest start on what

should be a very much longer journey towards a more truly modern or even

postmodern constitutional settlement. As we approach the twenty-ﬁrst

century these reforms seem located in the past. The problem seems to be

that constitutional reformers have only now won debates that elsewhere were

settled long ago. The reforms on offer at best would seem to bring the United

Kingdom into line with other constitutions that were founded in the eight-

eenth and nineteenth centuries and are now beginning to feel their age.

A brief look at the literature that supports the constitutional reform

project bears out this interpretation. Both in its more purely academic form,

and in the genre that contributes more directly to political debate, there is

a paucity in imagination about both how the business of government has

changed and how rules to contain it might now be devised. Only very limited

variations on familiar themes are offered. The old machinery of repre-

sentative politics and its accountable institutions of government can, it is

thought, be given new relevance by the simple expedient of adding on new

structures – rather as if Charles Babbage’s original calculating machine could

be made to work in the modern ofﬁce environment by the addition of a few

Intel processors or new software cards.

512

3Labour/Liberal Democrats, Report of the Joint Consultative Committee on Constitutional

Reform (1997).

A joint report by Charter 88, Democratic Audit, and Professor Patrick

Dunleavy illustrates this tendency.4The report brings together two of the

more progressive think-tanks credited with giving impetus to the govern-

ment’s reform package. At a time when political journalists describing the

new style of the Labour administration continue on the familiar theme of

the fugitive nature of political power, whereby the political action appears

not be found either in parliament5or the cabinet,6and the Commons Public

Administration Select Committee is formally querying if the Prime Minister’s

chief press secretary has not taken control over many of the functions of

parliament and government,7the report provides only a very limited analysis

of the problem and the cure. It sees the crisis in representative democracy

as arising simply from the fact ‘that the House of Commons is so dominated

by the Executive that it doesn’t function effectively’. The remedy proposed

is a modest fourfold plan involving (i) ‘giving the select committees a pre-

legislative role’, (ii) ‘boosting the select committees’ prestige and indepen-

dence’, (iii) ‘creating policy review staffs for select committees’, and (iv)

‘focusing the Public Accounts Committee’s work on general management

and inter-departmental issues’.8The idea that a solution may be found simply

within existing institutions is one that is common. The Constitution Unit

too puts faith in a whole pack of new watchdog commissions which

would stand alongside the Nolan bodies in patching up the old fabric of

Westminster.9Clearly such ideas are not radical although they are typical

of what now passes for progressive thought on the constitution.

At the more directly political party level there is little radical action beyond

the Labour Party line. The Liberal Democrats, seen by many (and not least

themselves) as an important dynamo in the process of change have restricted

their role to holding government to its promises as outlined in the pre-election,

joint consultative committee document.10 In its most recent pronouncement

the Lib-Dems seek simply more of the same – with a Supreme Court, a senate

rather than a merely reformed House of Lords, and written constitution.11

This limited view within the constitutional reform constituency of the

problems of government and the future solutions contrasts with that which

can be found in the writings from related disciplines. The literature of

politics, government and public administration generally has a much more

513

4Charter 88 et al., Reinventing Parliament. Available at

reinven/reinparl.html> (visited on 6 August 1998).

5J. Lloyd, ‘A Political Class – who needs one?’ Times, 20 March 1998, P. Riddell, ‘Does

anyone listen to MPs?’ Times, 23 March 1998, M. Parris, ‘The End of Opposition’ Times

1 May 1998.

6 P. Riddell, ‘Cracks in the Cabinet Cement’ Times, 10 November 1997.

7Commons Public Administration Select Committee Report (1997–8), published 6 August

1998.

8 Charter 88 et al., op. cit., n. 4, at pp. 16–21.

9 N. Smith, ‘Policing the Constitution’ (1997) Public Law 234.

10 Labour/Liberal Democrats, op. cit., n. 3.

11 Liberal Democrats Policy Review Commission Report, Constitutional Affairs (1998).

sophisticated view of how the nature and site of government has changed.

Even a cursory look here shows a detailed appreciation of the complexity

of the process whereby parliamentary sovereignty, strong cabinet govern-

ment, and ministerial responsibility have been replaced with ideas of policy

networks, governance, and a hollowed-out state. The sophistication of the

analysis here shows in sharp relief the crude simplicity of the model of

government and administration that is predicated in the constitutional

reform project.

At the same time the literature of political theory, in particular work

looking at radical, participatory democracy, suggests new approaches to the

problems arising from new forms of governance, and to the issues of legit-

imacy that these bring. These are far in advance of anything contained within

the constitutional reform model. Unlike the position of the constitutional

reformers, these views recognize that the genie of postmodern government

can not be returned to the bottle of the parliamentary state. Democratic

legitimacy cannot be achieved without mechanisms of enhanced democratic

deliberation. These must supplement or replace those straightforwardly

aggregative institutions of simple representative democracy which seek

to turn individual preferences into policy through the expedient of merely

counting votes.

While the reform project generally limits itself to little more than updating

our seventeenth-century constitution to the nineteenth century, only from

the New Labour Minister Peter Mandelson, has anything remotely radical

issued. In a keynote speech given to a seminar in Bonn in March 1998

Mandelson argued that ‘it may be that the era of pure representative democ-

racy is coming slowly to an end’.12 In this article I would seek to support

this basic conclusion but perhaps attempt to anchor it in a brief overview

of some of the literature from other disciplines calling for a more complex

understanding of how straightforward government has been replaced by a

more difﬁcult idea of governance. Mr Mandelson’s solution for dealing with

the slow demise of traditional constitutionalism lies in developing internet

referendums, citizen juries, and a whole range of direct democracy techniques

made possible by the revolution in computer-based communication. It will

be argued here that while something more than the current reform agenda

is required it must be a new technology of democracy rather than simply

new techniques for delivering on the old system. This call for a repositioning

of the role of constitutional lawyers will be supported by an examination of

some of the writings of more radical democracy which tackle fundamental

problems of legitimacy by developing ideas of inclusiveness and participation

that are necessary to truly invigorate democracy.

514

12 Times, 20 March 1998.

Models of change: misunderstanding the government-governance distinction

In an earlier work, a colleague and I argued that the locus of government

has moved, and that orthodox constitutionalism has failed to pick up on

this.13 We complained, particularly, that the textbook tradition within consti-

tutional law operates on outdated models and inadequate understandings

of how government actually works. Now public law literature uses the term

‘governance’ in preference to ‘government’ with increasingly frequency.

However, little has really changed. The phrase is used but generally what it

signiﬁes is little different. Within much constitutional law scholarship gener-

ally, as well as within the reform project particularly, there is still a tendency

to apply only a slightly updated version of the traditional Westminster model

with its emphasis on institutions and their formal rules of procedure and

organization.14 The ever-present drive towards inclusiveness and comprehen-

siveness that is characteristic of the textbook approach may now allow

reference to Next Steps, the increased role of regulation and auditing, and

even the purchaser-provider divide. However, these are generally accom-

modated within the old model rather than addressed as issues which provide

new, fundamental challenges to basic concepts of power, accountability, and

legitimacy. It is not necessary to repeat the earlier argument in detail. Indeed

the intention now is simply to target similar disapprobation ﬁrmly at the

reform programme – or at least the idea that the reforms on offer are enough

by themselves. The point is that although the textbook tradition and the

reform movement may occasionally acknowledge the existence of new struc-

tures and methods of government, they do not adequately account for them.

There is almost no regard for how radically new arrangements might be

dealt with ab initio, within a system designed to secure those values of partic-

ipation, equality, accountability, and so on which, as mentioned earlier,15

are supposed to underwrite the constitution. At most it is possible to ﬁnd

only complaints that traditional ways of securing these values, such as

ministerial responsibility and parliamentary scrutiny are not working as well

as they should and perhaps ought to be augmented in familiar ways through

515

13 J. Morison and S. Livingstone, Reshaping Public Power: Northern Ireland and the British

Constitutional Crisis (1995), especially ch. 1.

14 There are of course notable exceptions, particularly in administrative law (see, for

example, M. Taggart (ed.), The Province of Administrative Law (1997) and N. Whitty and

S. Millns (eds.), Feminist Perspectives in Public Law (1999). Nevertheless, perhaps among

the very crowded field of textbooks, C. Harlow and R. Rawlings, Law and Administration

(1997, 2nd ed.) and, to an extent, A. Le Seur and M. Sunkin, Public Law (1997) remain

unique in so far as they begin actually to engage with new developments rather than

merely acknowledging them.

15 See Labour/Liberal Democrats, op. cit., n. 3.

an extension of the existing formal constitution, such as a select committee,

another code of conduct or suchlike.16

The model of the constitution that is being employed is clearly one that

has not acknowledged the depth of the changes that really underlie the move

from government to governance. If we take ‘government’ to refer to the

conventional institutions and processes of the public sector and reserve

‘governance’ for a more general process of simply providing direction to

society with a minimal role for the traditional, formal institutions of the nation

state, it can be seen that many constitutionalists really still mean ‘govern-

ment’ when they refer to ‘governance’. The cast of mind of most constitutional

lawyers is still nowhere better described than by Grifﬁths as one which sees

the process of government through the constitution simply as:

the will of the people transmitted through its elected representatives who make law

instructing Cabinet to administer affairs of state [in the public interest] with the help of

an impartial civil service and under the benevolent wisdom of a neutral judiciary.17

The lawyer’s role is to map out the institutional structures and consider the

adequacy of formal restraints on political behaviour and democratic effect-

iveness. The big concepts remain parliamentary sovereignty, cabinet govern-

ment, and ministerial responsibility, but they are now augmented by human

rights and Europe and, especially, judicial review. Within this model there

is, of course, a role for slightly more realistic, slightly less formal institutional

restraints on political behaviour. It is to the political scientist – or more

precisely a particular brand of political scientist – that these constitutional

lawyers look for a ﬂavour of the rough and tumble of realpolitik. This

scrupulous demarcation is acknowledged by the equivalent genre of politics

writing reinforcing this view of the constitution.18 Thus, for example, Vernon

Bogdanor can be found declaring in his recent Guide to Constitutional

Reform that ‘the British constitution can be deﬁned in eight words: “What

the Queen in Parliament enacts is law”.’19

516

16 For example, a government consultation paper, entitled Opening Up Quangos: A

Consultation Paper (available on the internet at

qufore.html>) contains classic examples of hand-wringing over the secretive, unelected, and

unaccountable nature of quangos. However, the suggestions for dealing with this hardly

new but certainly centrally important, aspect of modern governance involve little more than

extending the remit of the Commissioner for Public Appointments and trying to return

some of their functions to parliament and the Scottish and Welsh bodies. (See also the

follow-up paper Quangos: Opening Up the Doors at

doors98/od>.) There is no effort to see quangos as fundamentally different to, and apart

from, the formal constitution, still less to rethink fundamentally how basic democratic values

can be realized in this arena and any of the others where the operation of government now

occurs beyond the limits of formal constitution.

17 J.A.G. Grifﬁths, ‘The Political Constitution’ (1979) 42 Modern Law Rev. 1–21.

18 See, further, A.H. Birch, Representative and Responsible Government (1961); A. Gamble,

‘Theories of British Politics’ (1990) 38 Political Studies 404–20, and M. Smith,

‘Reconceptualising the British State: Theoretical and empirical challenges to central

government’ (1998) 76 Public Administration 45–72.

19 V. Bogdanor, Power and the People: A Guide to Constitutional Reform (1997) at 11.

Fortunately this is not typical of all writing in politics or public adminis-

tration. This fact should encourage constitutionalists to look beyond the

orthodoxy and sharpen up their own approach. Of course, when visiting

another discipline it is always important to be careful.20 This is perhaps

particularly true when one is trying to borrow its insights to critique one’s

own area. However, the existence now of a ‘revisionism’, arguing that maybe

the state has prematurely capitulated to the forces of globalization and priva-

tization that seek to do it out of a job,21 suggests that the debate is an

advanced one within the literature of politics and public administration and

that it is time that constitutional lawyers caught up with it.

There are, inevitably, disputes about what the term governance means.

Rhodes, for example, talks of it having at least six distinct meanings clustered

around the idea of ‘governing without government’.22 The notion of hollow-

ing out of the state is, however, characteristic. There is a loss of functions

upwards to the European Union and through wider globalization, and

downwards towards agencies and the private sector. Kooiman,23 on the other

hand, emphasizes that modern governance is deﬁned by being less about

the direct intervention of government and more about the ways in which

the environment of action for private actors can be shaped by the state.

Essentially, however, it is clear that, as Peters puts it:

conventional command and control conceptualizations about governing are no longer

either fully descriptive nor fully acceptable, and provide a very incomplete notion of

how governments function in contemporary advanced societies.24

There has been a shift from state controlled, line bureaucracies to fragmented

service-delivery systems involving both the private and voluntary sectors

where the state has less involvement and control. Straightforward privati-

zation, market-testing, and the purchaser-provider spilt may have been

replaced by newer, New Labour ideas of ‘contestability’, ‘best value’, and

partnership but the direction is similar. We are in a polycentric state or, as

Luhmann describes it, ‘a centreless society’, full of complexity.25 Rhodes

terms this ‘a differentiated polity’ which is:

517

20 See review by B. O’Leary, ‘What Should Public Lawyers Do?’ (1992) 12 Oxford J. of Legal

Studies 404.

21 See B.G. Peters, ‘Shouldn’t Row, Can’t Steer: What’s a Government to Do?’ (1997) 12

Public Policy and Administration 51. Compare B.G. Peters, ‘Managing the Hollow State’

(1996) International J. of Public Administration. See also, P. Hirst and G. Thompson,

‘Globalisation and the future of the Nation State’ (1995) 24 Economy and Society 408 for

an argument that extreme versions of the globalization thesis miss out on the central, pivotal

role that states retain in distributing and rendering accountable powers of governance that

operate at levels above and below the nation.

22 See, further, R. Rhodes, Understanding Governance: Policy Networks, Governance,

Reﬂexivity and Accountability (1997) especially ch. 1.

23 J. Kooiman, Modern Governance: New Government Society Interactions (1993).

24 Peters, op. cit. (1997), n. 21, at p. 52.

25 N. Luhmann, The Differentiation of Society (1982).

characterised . . . by functional and institutional specialisation and the fragmentation

of policies and politics . . . [resulting in] . . . an increase in complexity and loss of central

steering capacity.26

Government now is only one of many actors that may inﬂuence the course

of events in society. The formal institutions of government do not have

enough power to exert their will on the other actors who are now involved.27

But just as the whole role of the state has changed, so too has its relationship

to civil society which is now mediated in different ways to what is now a

very different entity. Relationships have changed and lines have been blurred.

What is clear is that the traditional model found in constitutional law

scholarship and predicated in the constitutional reform project will not do.

The parliamentary democracy model, involving the institutionalization of a

clear border between the public and private sector, the institutional sepa-

ration of politics and administration, and the nation state as the basic unit

of government, is not adequate to contain these changes. There is a sharp

contrast between this and the self-critical approach from within, for example,

public administration, which questions whether or not its revolution in para-

digm is yet adequate to accommodate the new reality.28 Little of this seems

to have percolated out to inform any of the thinking behind the proposals

for constitutional reform. Indeed, if Albert Venn Dicey were to return today

there is nothing in the reform project that would surprise or alert him to

the radical changes in role and site of government over the last ﬁfty years.

From a political science perspective, Majone has acknowledged the

existence of:

signiﬁcant structural changes induced by a ‘concatenation of several basic strategies’:

privatisation, liberalisation and deregulation . . . ﬁscal retrenchment, economic and

monetary integration; and various policy innovations associated with the New Public

Management paradigm.29

In response to this he posits the idea of a decline in the ‘positive state’ where

the main functions are redistribution and macroeconomic stabilization; the

instruments used are taxing and spending; the characteristic institutions are

parliament, ministerial departments; and the forms of political accountability

are direct. In contrast, he suggests the model of the ‘regulatory state’ where

518

26 R. Rhodes, ‘From Marketization to Diplomacy: it’s the mix that matters’ (1997) 12 Public

Policy and Administration at 33.

27 Indeed, the constraints of previous policies as well as prior decisions on expenditure limit

even what power remains with formal government institutions.

28 See, further, A. Gray and B. Jenkins, ‘From Public Administration to Public Management:

Reassessing a Revolution?’ (1995) 73 Public Administration 75 and A. Dunsire,

‘Administrative Theory in the 1980s: A Viewpoint’ (1995) 73 Public Administration 17.

29 G. Majone, ‘From the Positive to the Regulatory State: Causes and Consequences of

Changes in the Mode of Governance’ (1997) 17 J. of Public Policy 139–67, at 140. See,

also, G. Majone, ‘The Rise of the Regulatory State in Europe’ (1994) 17 West European

Politics 77–101.

the main functions are correcting market failures; the instruments used

are rule making; the characteristic institutions are committees, independent

agencies, and commissions; and the forms of accountability are indirect.30

No doubt this taxonomy has its critics but it does seem to offer consti-

tutionalists at least a more sophisticated account than the analysis contained

in the straightforward parliamentary paradigm and the remedy that is asso-

ciated with it of simply putting the state back in – albeit mediated through

reinvigorated parliamentary mechanisms, devolved assemblies, and other

structures – and adding a better concept of rights. In particular, a more sophis-

ticated account along these or similar lines ushers in ideas of increased use

of privatization and contracting out, increased use of policy networks and

private-interest governments, as well as a simultaneous reorganization and

decentralization of those agencies and bodies that remain within the state.

The ways in which the private sector, and also the voluntary and commu-

nity sectors are now involved in aspects of service delivery that were once

the direct responsibility of the state can take many different forms. There

can be direct privatization or partnerships between government, the private

sector, and the third sector. These relationships can also have an interna-

tional or transnational dimension with European Union involvement.31

These different forms have various, different effects on the traditional mech-

anisms of control and accountability that are intended to deliver democratic

values to the processes of government. Further, the ‘reinventing government’

operational style32 also suggests challenges to orthodox, parliamentary mech-

anisms of direct accountability. Traditional working concepts such as

519

30 id. (1997), p. 149.

31 The preface to the European Commission White Paper, European Social Policy: A Way

forward for the Union (1994) contains the vision of ‘a new co-operative partnership between

Member States, social partners, voluntary and civic organizations, European citizens and

international bodies in the process of change’. The model for the partnership boards in

Northern Ireland funded by EU monies has been to involve local councils, the community

sector and business in particular projects but to make payment of grants conditional on

certain equality requirements and targets. (See n. 58 below.)

32 See, further, the central work by D. Osbourne and T. Gaebler, Reinventing Government

(1992). This was particularly extremely inﬂuential in the United States of America where,

for example, Vice-President Gore’s much heralded report, Creating a Government that Works

Better and Costs Less (1993) containing many ideas from Osbourne and Gaebler caused

President Clinton to pronounce that ‘government is broken’. In endorsing the Gore report,

President Clinton, in common with a great deal of political and academic opinion, has

accepted the view that government duties should be tied to and subordinate to budgetary

priorities, and that essentially government can be viewed as similar to the private sector in

so far as it will respond similarly to competition and management incentives and processes.

Further, there seems to be a universally accepted belief that the size of government is related

directly to the number of civil servants, and that to decrease the establishment is to decrease

the size of government. Such views are interesting and may even be true. However there is

no evidence that this is necessarily the case. See, further, for example, R. Moe, ‘The Re-

inventing government exercise: misinterpreting the problem, misjudging the consequences’

(1994) 54 Public Administration Rev. 111.

publicness, public interest, and professional ethos, as well as the idea of the

proper role of the state itself, are put under pressure when government

becomes more autonomous from the familiar nation state model. A proper

constitutional reform project should address this fully. An analysis which

fails to understand the wider process, or at best bemoans the lack of ﬁt

between present arrangements and traditional limits, does not seem to have

the necessary conceptual apparatus.

Clearly there is room for debate over the extent to which autonomy and

fragmented service delivery leads to (beneﬁcial) bottom-up policy making,

and at what expense in terms of control deﬁcits.33 For some, efﬁciency (or

at least private-sector views of efﬁciency34) is bought at too high a price

as controlling notions of professional values, trust, informality, and co-

operation are undermined. Indeed, as contract and state, competition and

co-operation, and value for money and public service are mixed together

the whole idea of publicness itself becomes problematic.35

The ‘new public management’ – those changes that are occurring within

what remains of government apparatus itself – illustrates well what may be

lost when one attempts, as Sir Robin Butler puts it, ‘to have the bun and

the halfpenny’,36 by mixing private-sector efﬁciencies and public-sector

values. The details of these changes are well appreciated – even by some

constitutionalists (although the implications are less well noticed here).37

Generally they have involved replacing the old command and control struc-

tures of the Civil Service with ﬂatter, more focused structures which encour-

age entrepreneurial rather than bureaucratic management and more ﬂexible

personnel regimes. All the changes contain an element of shrinking the core

functions of government and using departments as facilitators rather than

520

33 See, further, for example, the various accounts in D. Marsh and R.A.W. Rhodes (eds.),

Policy Networks in British Government (1992).

34 The Learmouth report (1995; Cm. 3020) investigating the Prison Service after the Parkhurst

affair provides a damming indictment of the excesses of modern private-sector management

techniques in a public-sector context. It was able to identify that the prison service main-

tained ‘one Statement of Purpose, one Vision, ﬁve Values, six Goals, six Strategic Priorities

and eight Key Performance Indicators’.

35 See M. Antonsen and T.B. Jørgensen, ‘The “Publicness” of Public Organizations’ (1997)

75 Public Administration 337.

36 Treasury and Civil Service Committee, 1992–3, q. 201, p. 35. See, also, R. Butler, ‘The

Future of the Civil Service’ (1992) 7 Public Policy and Administration 1–10. See, also, A.

Doig and J. Wilson ‘What Price New Public Management?’ (1998) 69 Political Q. 267–76.

37 For example, compare C. Foster and F. Plowden, The State Under Stress (1996) which,

although written from a public policy and management perspective, identiﬁes the consti-

tutional signiﬁcance of the revolution in government, with A. Bradley and K. Ewing,

Constitutional and Administrative Law (1997, 12th ed.) which simply extends chs. 13 and 14

from the previous edition to accommodate new developments or E. Barendt, An Introduction

to Constitutional Law (1998) which scarcely seems to notice these developments at all. See,

also, the breadth of the agenda in the ESRC Whitehall Programme, The Changing Nature

of Central Government in Britain at .

providers of services.38 Essentially the policy function in government is

retained by a very much smaller civil service establishment while the details

of service delivery are devolved to agencies at the outskirts of government.

This has had a profound effect on ideas of public interest and public duty.

Traditionally the public service ethic of the civil service in Great Britain has

been underpinned by informal codes of culture, education, and socialization

as much as by any structure. Indeed, it was William Gladstone who remarked

that no other system of government relies as much as the British on the

‘good faith’ of those who run it.39 However, there is an argument that now

the new structures in the public sector have undermined the traditional

governing ethos of public service. There are widespread fears, which have

not disappeared with the last election, that much public business still is being

carried on with inadequate ﬁnancial controls, failure to comply with rules,

inadequate stewardship of public money and assets, and a failure to provide

value for money. The concerns that are presently manifesting themselves via

the creation of committees, codes of conduct, and ethics infrastructures40

demonstrate that the basic concepts are no longer working. Traditionally

the idea was that there would be a creative tension in the symbiotic relations

between the civil servant and the political master. The politician would be

visible, committed, publicly accountable, and temporary while the civil

servant was anonymous, disinterested, internally accountable, and perma-

nent. This is a Weberian model of administrative structures – hierarchical,

technocratic, salaried and pensioned, and rule bound. However, the changes

that began some thirty years ago, but accelerated in the late 1980s and 1990s,

have operated to balkanize the traditional civil service structures and

undermine the public service ethos and the networks of professional

accountability which supplement the more formal structures.

521

38 The overall thrust is perhaps well represented in the Department of Trade and Industry

White Paper on Competitiveness (1995; Cm. 2867) which makes a virtue of initiatives to

cut ‘red tape’ and establish business links, including greater customer focus, increased

openness and accountability and, inevitably, a reduction in costs.) See, generally, P. Barber

(ed.), The Civil Service in an Era of Change (1997) and K. Theakston, ‘New Labour, New

Whitehall?’ (1998) 13 Public Policy and Administration 13 for an indication that the trend

towards radical reform may increase.

39 Even as recently as 1994 the White Paper on the Civil Service (1994; Cm. 2627) identiﬁed

the ‘key principles’ of public service as integrity, political impartiality, objectivity, selection

and promotion on merit, and accountability through ministers to parliament.

40 See, for example, the Treasury and Civil Service Committee review which resulted in a new

code in 1996, incorporated into the Civil Service Management Code, H.C. Debs., col. 10

(30 October 1995) (WA)) and the Nolan-Committee-inspired Public Service Committee code

(The Code of Practice for Public Appointments) H.C. (1995–6) 168). See, also, the work

of the Machinery of Government and Standards Group within the Government Freedom

of Information Unit at . There are

codes with an international dimension too with the Council of the OECD adopting a set

of principles in April 1998 entitled ‘Improving Ethical Conduct in the Public Service’. (See

One of the effects of these changes has been to undermine the idea of

public duty in the traditional sense.41 The managerialism of the modern civil

service puts an emphasis on the encouragement of entrepreneurial values via

short term contracts, performance related pay, and an erosion of the

established career structure. Increasingly civil servants must compete for their

own jobs and sometimes not on level terms with the private sector who are

not required to meet high standards on some non-ﬁnancial criteria, such as

the provision of equal opportunities for women where internal standards are

above the minimum. Contract staff at senior levels, perhaps responsible for

blocks of work or aspects of a programme of administration, may be drawn

temporarily from the private sector.42 Even yet following the 1997 election,

occasionally they may been seen as more likely to be political appointments.

Arguably this model of employer/employee meeting targets or satisfying

customers is inadequate to capture the complex picture of a civil servant

who has a range of responsibilities.43 Traditionally the civil servant is respon-

sible to the minister of the day and to the state, to the general public and

the particular client group served, to the rule of law and the conventions of

ministerial responsibility, to the civil service unit or agency in which he

or she serves and the professional ethics of a more general peer group.

Furthermore, a simple emphasis on consumer efﬁciency, with for example

the Citizen’s Charter use of quantiﬁable standards such as the length of time

taken to answer the telephone, does not capture the non-quantiﬁable aspect

of the public interest. Indeed, there are arguments that the sort of

performance-indicator-driven efﬁciencies that are sought simply are not

available given the limits of the management technology available.44

Ideas of accountability too have moved beyond the traditional model of

ministerial responsibility. These new structures mean that old concepts and

controlling mechanisms are inadequate. For example, Judge, Hogwood, and

McVicar develop the analogy of a ‘pondlife’ of executive agencies, arguing

that ‘all too often agencies are treated as homogenous entities subject to

reducible common issues of accountability’ whereas in reality there is ‘rich

variety’ of organizational dynamics and degrees of transparency which

522

41 See, further, A. Doig, ‘Mixed signals? Public Sector change and the proper conduct of public

business’ (1995) 73 Public Administration 191 or J. Greenaway, ‘Having the Bun and the

Halfpenny: Can old public service ethics survive in the new Whitehall?’ (1995) 73 Public

Administration 357 for a nuanced account of the public service ethos in a period of dramatic

public service change.

42 The drugs and homeless ‘tsars’ provide the most high proﬁle examples.

43 Rhodes presents it as a truism that ‘contracts undermine trust, loyalty, informality and co-

operation’ and argues that contracts are inevitably ‘low trust relations’ although some of

the new networks can be ‘high trust’. Rhodes, op. cit., n. 26, at pp. 38 and 45.

44 Business Intelligence Research found in 1992 that 89 per cent of companies were dissatisﬁed

with their current performance measures. See, further, special forum on performance

management in (1995) 15 Public Money and Management.

present a whole range of very different accountability problems.45 Although

there has been an undeniable growth in judicial review, there seems little

potential in relying on the ‘high constitutionalism’ of the Executive-Judiciary

relationship to repair accountability problems in the reality provided by the

new public-private divide. Quite apart from the practical problems of

deploying the courts in such a way, there are formidable legal obstacles. For

example, privatization statutes have given regulators enormous and largely

unreviewable discretions, contracts remain largely immune from judicial

review, and the informal nature of network relationships suggest courts are

not well placed to effect supervision.46

The reality of governance is much more complicated than the reformers

believe and straightforward reforms of the high or formal constitution can

not resolve adequately the outstanding problems. What is required instead

is a realization that governance in its various forms involves denying the

whole idea of comprehensive planning or general standards that seems

to be implicit in traditional idea of reform. There is now no possibility of

returning power to the control of a single institution – no matter how

expeditiously it devolves itself to the constituent regions of the United

Kingdom and constrains itself with human rights standards. The reform

project has sighted the wrong target and speciﬁed the wrong tools to remedy

what is a much more complicated problem than is supposed. The increased

autonomy that markets and quasi-markets, the third sector and networks

exercise means that it is now necessary to develop a sense of the complexity

of the relations between different aspects of the state and the possibilities

for steering this. As Kickert sees it:

at a time when top-down direct government steering is increasingly being replaced by

self-responsibility and autonomy of social institutions, and theories on central gover-

nance from super-ordinated positions are being replaced theories on inter-organizational

networks and non-compulsive co-operation, the need for theoretical insights into self-

governance is apparent.47

523

45 D. Judge, B. Hogwood, and M. McVicar, ‘The “Pondlife” of Executive Agencies: Parliament

and “Informatory” Accountability’ (1997) 12 Public Policy and Administration 95. See, also,

C. Polidano, ‘Why bureaucrats can’t always do what Ministers want: Multiple account-

ability in Westminster Democracies’ (1998) 13 Public Policy and Administration 35. In a

similar way, B. Quirk draws upon experience in local government to identify a ‘governance

gap’ (and argues that the remedy for this requires ‘a new 360 degree model of public

accountability . . . which is multi-dimensional and which admits the legitimacy of everyone’s

interest in the delivery of efﬁcient, equitable, transparent and quality public services’). See

‘Accountable to Everyone: Postmodern Pressures on Public Managers’ (1997) 75 Public

Administration at 585–6. See, also, L. Deleon, ‘Accountability in a “Reinvented”

Government’ (1988) 76 Public Administration 539.

46 See, further, R. Wood (ed.), Remedial Law: When Courts become Administrators (1990); M.

Shapiro, ‘Morality and the Politics of Judging’ (1989) 63 Tulane Law Rev. 1585; A. Fiss,

‘The Bureaucratisation of the Judiciary’ (1983) 92 Yale Law Rev. 1442 or the special issue

on the American Procedures Act in (1986) 72 Virgina Law Rev.

47 W. Kickert, ‘Autopoiesis and the Science of (Public) Administration: Essence, Sense and

Nonsense’ (1993) 14 Organization Studies 261–78, at 262.

For Kickert the answer lies with developing an autopoiesis model based on

the work of Luhmann and Teubner, as adapted by the administrative scien-

tist Morgan. This can explain, according to Kickert, how a network of

autonomous (autopoietic) systems behaves and maintains its organization

and identity, at least at the level of organizational meta stability, in a turbu-

lent and complex environment . Within public administration the theoretical

insights have involved developing an understanding of ‘rubber levers’, ‘loose

leverage’, ‘fuzzy boundaries’, and all the indirect management techniques

that are appropriate for the series of complex public private relationships

that exist as networks develop as an unintended consequence of market-

ization.48 It involves recognizing that government is much more than the

simple pull-push mechanism of Prime Minister, Cabinet or civil service

acting through legislation or spending and being simply accountable to

parliament through settled rules of institutional behaviour. As Taylor

describes in his analysis of the Department of National Heritage, even a

department which is relatively poor in terms of personnel and resources can

operate ‘in the politics of the sub-sectoral policy network’ where the future

of governance lies with:

the development of self-organising networks or even private government in which the

role of the state . . . is to help set the conditions within which networks operate and

help resolve the problems caused by complex patterns of interdependence which blur to

extinction the distinction between self-regulation and state intervention.49

This notion of setting the framework is key to understanding the future of

government. There are a number of possible strategies available50 and a

variety of resources are at the disposal of both the centre and network.51

Traditional ideas of both power and accountability must be revised. There

is, however, no universal steering mechanism or institutional pattern that

can achieve total control. Governance is a complex, indeterminate, and

largely shapeless exercise but exercising democratic control over it is no less

important for that.

524

48 See, further, Rhodes, op. cit., n. 26 for an overview of some of the research aimed at under-

standing the ‘new operating code for steering the differentiated polity’ (p. 43). See, also,

W. Kickert, E. Klijn, and J. Koopenjan, Network Management in the Public Sector (1997).

49 A. Taylor, ‘“Arm’s length but hands on”. Mapping the new governance: The Department of

National Heritage and Cultural Politics in Britain’ (1997) 75 Public Administration at 448–9.

50 For example, Alexander identiﬁes six strategies for managing interorganizational co-

ordination. They are: cultural-persuasive (for example, public relations), communicative (for

example, information exchange), functional (for example, coalition formation), co-operative

(for example, resource exchange) control (for example, monitoring and enforcement) and struc-

tural (for example, reorganization). See E. Alexander How Organizations Act Together (1995).

51 See, for example, Dowding who identiﬁes ﬁve resources including: knowledge/information,

legitimate authority, the control of resources, the ability to make threats and offers, and

reputation. See K. Dowding, ‘Model or Metaphor? A critical review of the policy network

approach’ (1995) 53 Policy Studies 136. Rhodes sees the centre deploying control over

legislation, ﬁnance, capital expenditure, performance standards, and an electoral mandate

while a group’s resources include specialized knowledge, control of implementation, a degree

of independent funding, and a group mandate. See Rhodes, op. cit., n. 22.

Even the socio-legal studies movement which ought to be leading the way

here is not yet quite at the pace.52 Certainly the constitutional reform move-

ment, with its ideas of restraining big government and reviving the role of

parliaments, is far away from realizing that its analysis and its remedy has

missed the point. There is a whole apparatus of government beyond the

constitution, and a problem about exercising democratic control over this,

that the constitutional reform movement seems not to have noticed. But, as

shall be argued in the next section, there is a role for the constitutional

lawyer in developing a technology for delivering a renewed concept of

democracy in the new context of governance.

CONSTITUTIONAL RENEWAL BEYOND REFORM

What we call necessary institutions often are no more than institutions to which we have

become accustomed . . . in matters of social constitution the ﬁeld of possibilities is much

more extensive than many people are ready to recognize. Alexis de Tocqueville

The proposals for constitutional reform miss their target by focusing on a

traditional agenda of restraining big government and reviving the role of

parliaments through the variable geometry of a newly devolved polity. The

government may style itself New Labour but it is very old constitutionalism

that informs its reform programme. While the proposed reforms are impor-

tant, and should be implemented, they are not enough by themselves.

A radical agenda of constitutional renewal must instead acknowledge the

complexity and the fugitive nature of power and seek to exercise democratic

control in the new sites where power is exercised.

In addition to this, a programme of constitutional renewal should work

on new ways to institutionalize democracy beyond parliaments, committees,

and codes for conduct there. Orthodox constitutionalism seems only to be

about shoring up a liberal, individualist version of democracy which for

many seems fundamentally incapable of delivering the legitimacy required

to underwrite government in a changing world.53 Just the writing in polit-

ical science and elsewhere should alert constitutionalists to the complexity

of modern governance (as was argued earlier), so too should debates in

political theory alert us to alternative and more developed notions of democ-

racy which require new versions of constitutionalism. Within these debates

525

52 See, for example, the agenda set out for socio-legal studies in the area of public law by D.

Galligan in ‘Introduction’ in A Reader on Administrative Law, ed. D. Galligan (1996) 1–60

and D. Galligan, ‘Public Law’ in Socio-Legal Studies, ed. P. Thomas (1997) 206–21.

53 To take only one example at this stage from a wide spectrum of alternative views, to be

considered later, Barber argues that liberal democracy is a ‘“thin” theory of democracy,

one whose democratic values are prudential and thus provisional, optional, and conditional

– means to exclusively individualistic and private ends. From this precarious foundation,

no ﬁrm theory of citizenship, participation, public goods, or civic virtue can be expected

to arise’. B. Barber, Strong Democracy: Participatory Politics for a New Age (1984) 4.

majoritarianism is not a synonym for democracy. Giving effect to what most

people want – perhaps with some limits established by an idea of universal

or human rights – is not an adequate interpretation of democracy. What is

required to reinvigorate the traditional aggregative structures of democracy

which simply count and give effect to individual preferences are participatory

mechanisms which can be constitutive of us as citizens in a direct and

empowering way. A constitutionalism underwriting such a version of democ-

racy might well look very different from that imagined by constitutional

reformers. It might indeed challenge some of its cherished concepts.

The next two sections will attempt to sketch out some of the dimensions

of a programme of constitutional renewal. First, a brief examination will be

made of the levels at which power now operates and where constitutional

reform must now follow and engage. Secondly, some of challenges that more

radical theories of democracy throw down to constitutional lawyers will

be introduced.

1. Capturing fugitive power: levels of constitutionality and a legal

technology for democracy

A necessary corollary of the idea that reformers should develop a sense of

the different levels at which power now operates, and the complexity of rela-

tionships there, is that constitutional reform should give itself a more ambi-

tious remit. The values that, as noted earlier, are supposed to underwrite

the constitution (and perhaps some others including proportionality,

subsidiarity, mutuality, and so on) must be given application at all levels

and in all places where public power is now exercised. This will involve

recognizing the multiple levels where governance now takes place, claiming

these as legitimate areas for constitutional control, and developing a legal

technology for constraining and shaping public power as it now operates.

In this way not only will the world of networks, partnerships, contracts,

and so on that exists beyond the high constitutionalism of parliaments and

cabinet be the subject of democratic rule but so too will that power which

has migrated upwards and outwards to other levels above the nation state

and its institutions. David Held’s idea of ‘cosmopolitan governance’ recog-

nizes the scope of the project that is called for here.54 Held argues for ‘a

cosmopolitan model of democracy’ which will require systems of account-

ability and control to operate at least three levels. These include: (i) the

relationships between domestic political institutions and key groups, agen-

cies, associations, and organizations of the economy and civil society (both

national and international); (ii) global issues beyond the control of nation

state, including ﬁnancial ﬂows, environmental crises, security, new forms of

communication, and so on; (iii) those regional and global regulatory and

526

54 D. Held, Democracy and the Global Order: From the Modern State to Cosmopolitan

Governance (1995).

functional agencies which make up part of the new international legal order.

(Indeed, Held recognizes that his project may be even more wide ranging

where he insists that ‘democracy can only be fully sustained by ensuring the

accountability of all related and interconnected power systems, from

economics to politics’).55

There is not space here to develop this much beyond a call to action that

requires constitutional renewal to set its sights higher and consider how it

could develop a legal technology to bring about democracy at all appropriate

levels. At the European level this important aspect is moving up the agenda

as the European Union acquires more and more of the functional capacity

of the state.56 At the ‘domestic’ constitutional level, the way in which public

power now ranges above and below the level of the nation state and is inter-

mingled with private relationships of contract and regulated by ideas of best

value, contestability, and so on does not mean that there is no longer a

democratic agenda to follow. The project of constitutional renewal must be

to supply the instruments to deliver basic ideas of equality, accountability,

and democratic control at the points where governance now operates. These

will involve not only the traditional tools of information rights and duties

and enforceable basic rights but also enhanced versions of these that can be

used at the new levels and in the new contexts where governance now takes

place. Some aspects of the experience in Northern Ireland (where the tradi-

tional institutional democratic controls have been even more moribund than

elsewhere) provide indications of what form these new controls might take.57

In particular, there is the potentially radical policy appraisal and fair

treatment (PAFT) initiative which introduces ideas of conditionality clauses

whereby other policies are contingent on certain targets – democratic or

equality-based – being met.58 Other examples developed or suggested in the

Northern Ireland context too have wider application with, for example, more

democratic indicators for performance and ﬁnancial management which

527

55 id., p. 267 (my emphasis).

56 See, further, the overview of possibilities and prospects provided by N. Walker, ‘European

Constitutionalism and European Integration’ (1996) Public Law 266.

57 See, further, Reshaping Public Power: Northern Ireland and the British Constitutional Crisis,

op. cit., n. 13.

58 According to the guidelines, ‘PAFT is concerned with securing equality of opportunity and

equity of treatment regardless of religious belief, political opinion, gender, marital status

having or not having a dependent, ethnicity, disability, age or sexual orientation . . . PAFT

is not conﬁned to issues of legality but encompasses the wider issues of fairness’ (Central

Secretariat Circular 5//93. See, also, Standing Advisory Commission on Human Rights,

Employment Equality: Building for the Future (1997; Cm. 3684). It operates (at least ideally)

to mainstream equality norms at all levels of public sector activity by requiring government

in all forms to be aware of and responsive to a wider agenda of equality. It has the potential

to operate both at the level of contracts with private sector suppliers and with a European

dimension where, for example, the EU’s Special Support Programme has PAFT-style

commitments to ensure that partnerships between government, business, and the third sector

funded under this programme pursue an equality agenda. (See n. 31 above.) According to

move beyond simple ideas of efﬁciency towards reconstructed ideas of public

interest and redeﬁned public duties.59

2. Constitutionalism as a process of rule rather than framework for rule

There is a range of approaches within recent political theory suggesting the

possibility that institutions should be preference forming rather than simply

instruments for realizing existing preferences – expressed either formally in

elections or routinely in markets. These accounts come from a number of

perspectives ranging from the normative orientation of Habermasian theo-

ries through the more contextualist positions of the republicans to the anti-

normative versions offered by postmodernists.60 There is a particularly

important distinction between versions of democratic empowerment which

operate by increasing power through ‘exit’ mechanisms and those which seek

a more integrative approach by developing ‘voice’ strategies.61 The emphasis

here is on the latter and the aim now is to draw attention to those radical,

communicative and participatory ideas of democracy that have the capacity

to challenge the limits of traditional liberal, individualist democracy, push

discussion beyond notions of civic republicanism, and begin to address some

528

some sources, PAFT has its origins in an (unpublished) United Kingdom-wide gender

equality initiative in Whitehall (see R. Osbourne et al., ‘The Implementation of PAFT

guidelines in Northern Ireland’ in Policy Aspects of Employment Equality in Northern

Ireland, eds. E. McLaughlin and P. Quirk (1997) 129–30). It certainly has the potential to

operate beyond the Northern Ireland context and if the general policy were more

enthusiastically implemented (perhaps along the lines suggested by, for example, C.

McCrudden, Mainstreaming Fairness? (1996); Benchmarks for Change: Mainstreaming

fairness in the Governance of Northern Ireland (1998) or T. Hadden et al., Equal but not

Separate (1998)) it could provide a model for a very signiﬁcant way of developing new

normative, constitutional mechanisms. Regrettably, however, the ofﬁcial response appar-

ently has been to reduce this interesting possibility to a new and more general statutory

duty policed by a body outside government. (See White Paper on Partnership for Equality

(1998; Cm. 3890) and Part VI of the Northern Ireland Bill 1998.)

59 See. further, J. Morison, ‘Public Services in a Divided Society’ in Joseph Rowntree

Foundation and Chief Executives’ Forum, People and Government: Questions for Northern

Ireland (1998).

60 For an overview, see R. Blaug, ‘New Theories of Discursive Democracy: A User’s Guide’

(1996) 22 Philosophy and Social Criticism 49.

61 On this distinction see, further, E. Sørenson, ‘Democracy and Empowerment’ (1997) 75

Public Administration 553 and D. Estlund, ‘Who’s Afraid of Deliberative Democracy? On

the Strategic/Deliberative Dichotomy in Recent Constitutional Jurisprudence’ (1993) 71

Texas Law Rev. 1437. (Exit strategies can involve more than a simple belief in the instru-

mental rationality of the market and the force of consumer decisions there. See, for example,

the associative democracy of P. Hirst, Associative Democracy: New Forms of Economic and

Social Governance (1994) which emphasizes voluntarism and asserts that ‘the negative right

to leave an association at one’s choice, and the legal defence of that right by the public

power, is more important than any positive interventions by the public power to ensure

that the association is democratic’ (p. 51).)

of the big problems of legitimacy within formally democratic institutions

that the constitutional reform agenda has missed.

Of course such ideas are not really new. They reach back to the polis of

classical Athens by way of Hannah Arendt’s ‘council system’62 and John

Dewy’s assertion that ‘majority rule is as foolish as its critics charge it with

being’.63 They involve rejecting, as Fishkin puts it, the ‘false dilemma’ that

‘we must choose between the thoughtful but antidemocratic competence of

elites on the one hand, and the superﬁcialities of mass democracy on the

other’.64 If we are dissatisﬁed with democratic institutions the answer is not

more or even better reﬁned aggregative democracy but more and better

democratic deliberation.65 Aggregative arrangements by themselves lack the

‘moral resources’66 required to generate and sustain legitimate collective solu-

tions to politically contentious issues and so, for proponents of deliberative

or discursive democracy, democratic legitimacy can be achieved only by

enhanced deliberation. As Sunstein argues, electoral outcomes are suscep-

tible to inﬂuence by various arbitrary, exogenous social, cultural or economic

asymmetries.67 A more deliberative approach, however, is concerned with

preference building. It is an integrative as opposed to aggregative approach

that sees society as an essentially social construct where preferences are

endogenously produced and empowerment comes from participation in

collective decision making.68

Advocates of deliberation often claim that it somehow mediates or trans-

forms disagreements rather than simply minimize, or accommodate,

conﬂict.69 There are different ways in which this happens reﬂecting the

spectrum of perspectives within the general approach. Within some

Habermasian accounts, the emphasis is on ‘communicative action’ where

the process of discussion itself and the practical stance of being reasonable,

529

62 See H. Arendt, Crises of the Republic (1972) 232–3.

63 J. Dewy, The Public and its Problems (1927) 207–8. Of course Dewey argued that majority

rule is never ‘merely majority rule’ because ‘the counting of heads compels prior recourse

to methods of discussion, consultation and persuasion’ and this ushers in ideas of enhancing

democratic deliberation.

64 J. Fishkin, Democracy and Deliberation: New Directions for Democratic reform (1991) at 3.

See, also, J. Le Grand, ‘Equity versus Efﬁciency: the Elusive Trade-off’ (1990) 100 Ethics

554 and G. Sartori, The Theory of Democracy Revisited (1987) 25–31.

65 As D. Yankelovich puts it, ‘for democracy to ﬂourish, it is not enough to get out the vote.

We need better public judgment and we need to know how to cultivate it’. Coming to Public

Judgment: Making Democracy Work in a Complex World (1991) 11.

66 The term comes from C. Offe and U. Preuss, ‘Democratic Institutions and Moral Resources’

in Political Theory Today, ed. D. Held (1991).

67 C. Sunstein, ‘Beyond the Republican Revival’ (1988) 97 Yale Law J. 1539.

68 See, further, for example, C. Pateman, Participation and Democratic Theory (1989) or J.

Dryzek, Discursive Democracy: Politics, Policy, and Political Science (1990).

69 See, for example, Sunstein, op. cit., n. 67 or Barber, op. cit., n. 53 who contrasts the ‘electoral

system of bribing an apathetic electorate with promises of personal gain’ with a series of

practical suggestions for realizing participation (pp. 261–311).

willing to talk and listen, produces the result.70 For others, like Arendt,

deliberation works because it emphasizes politics as the public space where

people demonstrate their plurality and thinking in the presence of others

and this produces an ‘enlarged mentality’.71 Deliberation here almost seems

to involve a transformative personal experience.72 For Mansbridge:

the presence of others encourages ‘we’ rather than ‘I’ thinking . . . when a society needs

to discourage individual self-interest and encourage altruism, deliberation in public will

often serve that end.73

Other versions see deliberation as transforming preferences, inducing agree-

ment, and thus producing something akin to a Rousseau-style general will.74

Still others take a more modest view saying that deliberative democracy is

justiﬁed only because it deﬁnes the parameters of political conﬂicts and

establishes a common view.75

While there may be a certain utopianism in some of the new theories of

discursive democracy, their strength lies in the way that they put the empha-

sis on the fairness of the debate that precedes the taking of any decision and

move the focus away from calls for equal representation in the arena of

decision making (more aggregative democracy). In the more radical versions

this ushers in a trenchant analysis of the limits of existing state structures

and a new idea of what democracy could be. It is this that is the source of

such theories’ challenge to the constitutionalism of the reformers who put

their emphasis on simply reinvigorating the institutions and structures of

straightforwardly representative democracy.

Ideas of participatory or dialogic democracy suggest that we no longer

need to see democracy within a traditional liberal model where it is, as

530

70 As J. Habermas himself puts it in sketching a model of discourse theory, ‘practical reason

withdraws from universal human rights, or from the concrete ethical substance of a speciﬁc

community, into the rules of discourse and forms of argumentation. In the ﬁnal analysis

the normative content arises from the very structure of communicative actions’. ‘Three

Normative Models of Democracy’ (1994) 1 Constellations at 6.

71 See H. Arendt, ‘The Crisis in Culture’ in Between Past and Future (1977) 220 and ‘Truth

and Politics’ in Between Past and Future (1971) 241. See, also, M. Canovan, Hannah Arendt:

A Reinterpretation of her Political Thought (1992) 229 and following.

72 For S. Wolin ‘democracy is not about where the political is located but how it is experienced’

with the constitutional arrangements of liberal democratic states being the ultimate ‘domesti-

cation’ of what should be a more real and personally transformative politics (‘Fugitive

Democracy’ (1994) 1 Constellations 11).

73 J. Mansbridge, quoted in L. Sanders, ‘Against Deliberation’ (1997) 25 Political Theory

at 360.

74 See Barber, op. cit., n. 53, p. 200. It is at this point that deliberative concepts start to move

towards those more communitarian approaches which suppose agreement on major political

issues producing an idea of a common good and the justiﬁcation of political devices of mild

coercion to get us to abide by our collective decisions.

75 J. Knight and J. Johnston attribute this view to J. Mansbridge and Iris Marion Young.

(See ‘Aggregation and Deliberation: On the Possibility of Democratic Legitimacy’ (1994)

22 Policy Theory at 283, fn. 36. They themselves believe that this may in fact operate to

highlight areas of disagreement (p. 286).

Habermas describes it, ‘the legal institutionalisation of an economic society

that is supposed to guarantee an essentially nonpolitical common good by

the satisfaction of private preferences’.76 Indeed we can move beyond even

a Republican model where ‘democratic will-formation takes place in the

form of an ethical-political discourse shared by the citizenry’ towards an

idea of ‘the democratic self-determination of deliberating citizens’.77 This

can admit a very different form of constitutionalism. It is one which empha-

sises process over institutions and seeks to maximize participation. Unlike

the reformers’ agenda it will not be enough simply to shore up the institutions

of representative democracy through reforms to parliament and the rest.

Attention must now turn to process and participation.

Even Knight and Johnston (who are generally sceptical of deliberative

perspectives) admit this approach requires ‘fair procedures’ including ‘mani-

festly free and equal access to relevant deliberative arenas for purposes of

establishing procedures, setting the agenda, and making ﬁnal decisions.’78

This prescription can then be dissected to bring out ‘all the legally guaranteed

liberties (for example, speech, association, and so on) without which delib-

erative arrangements would be hollow’ and all the equality rights assuring

‘access to any relevant public forum’.79 Of course these are not radically new

rights as such, although their basis may be slightly different from that usually

given. But in other hands the idea of participation can be interpreted to

make a difference and, indeed, in moving towards a more radical concept

of democracy that demands that we privilege participation, some of the basic

concepts of reform may be challenged.

In particular, calls for a participatory democratic approach will challenge

the conﬂation of the state apparatus with the public sphere of discourse and

association. The state arenas, provided by representative democracy, parlia-

ment, legally guaranteed free speech, and the rest, are not the sole or exclu-

sive spheres of public, civic interaction. (Indeed, some feminist writing for

example, argues that existing state institutions are inherently exclusionary

because of their masculinized nature.80) As Fraser complains, historically

the landmark emergence of parliament as a place for both opinion forming

and decision making swallowed up other public spheres of debate and

531

76 Habermas, op. cit., n. 70, at p. 7 It does not seem to be necessary to subscribe to Habermas’s

views on how participation should be arranged in order to share this conclusion. See also the

discussion in C. Sunstein ‘Preferences and Politics’ (1991) 3 Philosophy and Public Affairs 3.

77 id., p. 6.

78 op. cit., n. 75, at p. 285.

79 id., p. 286. Sunstein too from a similar perspective accepts that ‘one important goal of a

democracy . . . is to ensure autonomy not merely in the satisfaction of preferences, but also,

more fundamentally, in the processes of preference formulation’ (p. 11).

80 See, for example, K. Ferguson, The Feminist Case Against Bureaucracy (1984) and C.

MacKinnon, Towards a Feminist Theory of the State (1989). Also Wendy Brown who

develops at the same time a sense of the complexity of the different modalities of power

within the state along with a realization of their inherently masculine quality: ‘the multiple

dimensions of social constructed masculinity have historically shaped the multiple modes

of power circulating through the domain called state’ (States of Injury: Power and Freedom

in Late Modernity (1995) at 177).

discussion, blurring the lines separating associational civil society and the

state.81 This needs to be corrected. The role of radical participatory democ-

racy is to move beyond simply ﬁddling with parliament and other aspects

of representative democracy and reclaim a public space where truly equal,

free, and participatory discourse can take place. This requires that we move

beyond a civic republican view where people reason together to promote a

common good that transcends the mere sum of individual preferences.

Indeed, as Iris Marion Young says:

the enlightenment idea of the civil public where citizens meet in terms of equality and

mutual respect is too rounded and tame an ideal of public . . . emancipatory politics

should foster a conception of public which in principle excludes no persons, aspects of

persons’ lives or topics of discussion.82

This may mean that we move beyond simply declaring public space (in the

sense of that area between civil society and the state) as formally open and

equally free to all. For Fraser, in her critical engagement with what she

perceives to be Habermas’s failure in The Structural Transformation of the

Public Sphere83 to fully recognize that status hierarchies of gender, race, and

class preclude full interaction, the very idea of deliberation in its present,

formal form is actually inimical to properly discursive interaction and can

instead serve as a mask for domination.84

What is required instead is that the public sphere be rendered genuinely

public as a place where discourse, opinion forming and, indeed, decision

taking, can take place on a basis of real equality and participation. Social

inequalities must not be simply bracketed (as if they were of no account in

the idealized space of public dialogue). These inequalities in power and status

do exist along gender, class, race, and other lines and they need to be

addressed in order that there can be a proper and effective representation

and recognition in the democratic public of those voices that are oppressed

or disadvantaged. Competing ‘subaltern counter publics’,85 reﬂecting a social

diversity that is not equally represented in the single public of the formal

532

81 As Fraser puts it, ‘As a locus of public deliberation culminating in legally binding decisions

(or laws), parliament was to be the site for the discursive authorization of the use of state

power’. N. Fraser, ‘Rethinking the Public Sphere’ in Justice Interruptus: Critical Reﬂections

on the ‘postsocialist’ Condition (1997) at 91 (my emphasis). (See, also, C. Calhoun (ed.),

Habermas and the Public Sphere (1992).)

82 I.M. Young, ‘Impartiality and the Civic Public: Some Implications of Feminist Critiques

of Moral and Political Theory’ in Feminism as Critique: Essays on the Politics of Gender in

Late Capitalist Societies, eds. S. Benhabib and D. Cornell (1987) at 56.

83 (1962).

84 As Fraser argues, ‘the relationship between publicity and status is more complex than

Habermas intimates . . . [and] . . . declaring a deliberative arena to be a space where extant

status distinctions are bracketed and neutralized is not sufﬁcient to make it so’ (op. cit., n.

81, at p. 74). See, also, J. Mansbridge, ‘Feminism and Democracy’ (1990) 1 American

Prospect 127 and S. Benhabib, Situating the Self (1991).

85 The phrase is Fraser’s (id.) and refers to the idea that there may be a variety of alternative,

competing counter publics reﬂecting the diversity in highly stratiﬁed modern society that

exists outside and in opposition to the ofﬁcial, dominant public.

constitution, must be recognized and brought in to participatory democratic

engagement on equal terms. This may well involve privileging them in some

ways. As Young argues:

where there are group differences in capacities, socialization, values, and cognitive and

cultural styles, only attending to differences can enable the inclusion and participation

of all groups in political and economic institutions.

Rather than inevitably formulating rights and rules in general terms that

ignore difference and positing ideas of universal citizenship, the participatory

model requires the recognition that ‘some groups sometimes deserve special

rights’.86 Young sees these as requiring institutional mechanisms and public

resources in support of three levels of activities: ﬁrst there is the self-

organization of group members so that they gain a sense of self-

empowerment and ‘a reﬂective understanding of their collective experience

and interests in the context of the society’;87 secondly, there is the voicing

of a group’s analysis of how social policy affects them and their policy

suggestions in an institutionalized context ‘where decision makers are

obliged to show that they have taken these perspectives into account’;

thirdly, there is veto power over speciﬁc policies that affect a group directly

such as, for example, ‘reproductive rights for women’.88

In order to achieve proper participatory, dialogic democracy at these three

levels it is necessary to add to the legal technology designed to capture

fugitive power referred to earlier, a series of additional devices to maximize

participation in all the agencies, quangos, networks, and so on that make

up the public space within the new and more complex conditions of gover-

nance today. These might include consultation requirements, vetoes, and

conditions of minimum consensus as well as a range of rights for particular

groups and special duties placed on parts of government.89 Existing rights,

such as those relating to freedom of information or requirements to hold

meetings in public may be extended and have different application when

533

86 I.M. Young, ‘Polity and Group Difference: A Critique of the Ideal of Universal Citizenship’

(1989) 99 Ethics at 269. Concepts of universal citizenship too must be challenged because,

as Young argues, ‘the idea that citizenship is the same for all translates in practice to the

requirement that all citizens be the same’ (p. 254). Compare C. Moufffe (ed.), Dimensions

of Radical Democracy: Pluralism, Citizenship, Community (1992).

87 In some ways this resembles Unger’s view of the importance of innovation in the institu-

tional forms of democracy and civil society and the concern that ‘to abandon the organiza-

tional requirements of civil society to the traditional instruments of private law is to

acquiesce in starkly uneven organization. The facilitative devices of contract and private

law will be used by those who in a sense are already organized.’ R. Unger, What Should

Legal Analysis Become? (1996) at 17.

88 Young, op. cit., n. 86, at pp. 261–2.

89 At the level of governmental institutions see the ‘cross-community support’ requirements

in the Northern Ireland Act 1998 or the weighted voting procedures in the Belgian consti-

tution. The PAFT model discussed above (n. 58) clearly has application here too. (For some

further examples at the level of service delivery in all its new forms, see Morison, op. cit.,

n. 59.)

their basis is in participation. Existing control mechanisms like judicial

review too would have different application as a result of being based more

ﬁrmly in policing the processes of participation rather than with dealing with

the details of the political choice under attack.90 A constitution based on

process would be committed also to devising and using more imaginative

ways of assessing preferences, including citizen juries, surveys, preferenda,

consensus conferences, and even focus groups.91 There may be a particular

role for new information technology here92 as well as, possibly, an additional

argument for proportional representation.93 Indeed, within some interpre-

tations of the logic of the deliberative ideal, it is necessary for constitutional

reform to extend its remit to the correction of the social inequality that

infects what should be inclusive public spheres and unbalances deliberation

there.94 All of this suggests a programme of constitutional renewal that is

much more ambitious than the reform project that is currently underway.

This brief examination of the problems of reform has looked through a

lens provided by the more sophisticated accounts of governance that can be

found in the literature of politics and government. These accounts suggest

a more complex situation than that predicated by the reform programme.

This in turn requires a more complex approach in order to capture fugitive

power as it moves to many levels above and below the traditional institutions

of the state. This paper has looked brieﬂy at the prospects for a new role

for constitutional lawyers in a wider renewal project. In addition to capturing

public power in its new sites, such a programme might be informed by ideas

of a radical, communicative, and participatory democracy. This would move

the concept of reform beyond the limits of traditional, liberal individualist

democracy towards the establishment of a idea of the constitution as a

534

90 See, further, J.H. Ely, Democracy and Distrust: A Theory of Judicial Review (1980).

91 See, for example, the Civic Forum established by the Belfast Agreement and the duty

contained in Part VII of the Northern Ireland Act 1998 requiring the First Minister to make

arrangements ‘for obtaining from the Forum the views of the community on social,

economic and cultural matters’. More generally, see, further, E. Meehan, ‘Democracy

Unbound’ in Reconstituting Politics, ed. R. Wilson (1996).

92 See, further, the rather cautious analysis in C. Bellamy and J. Taylor, Governing in the

Information Age (1998). Also C. Walker and Y. Akdeniz, ‘Virtual Democracy’ (1998) Public

Law 489.

93 A participatory rational for proportional representation lies not in the way that it simply

factors in more preferences but in any contribution that it might make to preference-shaping.

See, further, Sunstein, op. cit., n. 76, pp. 32–4 who maintains that, at best, proportional repre-

sentation could be regarded as ‘a kind of second-best solution for the real-world failures of

Madisonian deliberation’ by ensuring the presence of others so that the process of deliberation

is not distorted by the appearance of a common set of interests among all those involved.

94 For example, J. Cohen and J. Rodgers argue that ‘the absence of material deprivation is a

precondition for free and unconstrained deliberation’ and that ‘material inequalities can

subvert a structure of free and equal public deliberation by translating into sharply unequal

capacities for political action’ (On Democracy (1983) 157–8.) Fraser too maintains that ‘it

is a necessary condition for participatory parity that systemic social inequalities be

eliminated’ (op. cit., n. 81, p. 80).

preference-forming network rather than simply a mechanism for containing

rule. This project would be bigger than anything imagined by the reform

programme to date and a fuller exploration of radical democratic theory

will suggest a more ambitious role for the constitutional lawyer and a more

satisfactory and legitimating project of constitutional renewal.

535

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