DEMOCRACY – A GOOD WORD FOR THE GOOD OLD WAY

Amidst the scramble for new-fangled forms of democracy, spare a thought for the excellence of the good old way.

Citizens elect representatives to make laws and oversee governance on their behalf. The simple design of representation by election is in fact a very smart arrangement, much smarter than is often appreciated. Is solves three problems in one go: a problem of power, a problem of size and a problem of quality.

Power. Since representatives are elected by citizens and can be deselected by them at the next election, they govern under popular control. We have one of the requirements of democracy: safe government. The problem of power is solved. The people hold power over those who exercise power over them.

Size. When the American republic was created, a way needed to be found to govern a large territory with the consent of the people who lived dispersed over that territory. The previous republican experience was that of cities governing themselves, such as in the Italian city states of the Renaissance. The previous democratic experience was that of direct democracy. Some of this could be replicated in America on the local level (and there was experience of direct town democracy before the consolidation of the federation) but a new model was needed for national (and state) government. The Founding Fathers settled for localities sending representatives to the capital to manage public affairs in the place of citizens themselves. The method of representation by election is an invention of the American Constitution. Without this invention we could not have had national democracies.

Quality. Governance should be safe but also effective. The representative method puts decision-making in good hands, which the direct democracy does not, and delegates the responsibility of decision-making to an assembly, which the autocratic method does not. One purpose of elections is to give us the opportunity to appoint those among us who are the more qualified to do the job. The advantage of decision-making by assembly is that it enables the institutionalisation of rules and procedures of good decision-making and that it offers the chance for proper deliberation. In an assembly of representatives who are more numerous than a small committee of like-minded apparatchiks, who are from different parts of the country and with different backgrounds and who are elected on different political platforms, there is a good chance that decisions will be tested by robust debate.

Although we must make the qualification that democracies always work imperfectly, sometimes very imperfectly, these are real benefits in the method of representation by election. That is a method we should not easily give up on, and one we should probably value more than we do.

DECISION AND DELIBERATION

Decisions made by a democratic National Assembly (or Parliament or Congress) have democratic legitimacy. That’s what we want in a democracy, decisions that are valid because they are made democratically.

However, strangely enough, the democratic legitimacy of decisions correctly made can sometimes be a problem. Whatever the National Assembly decides, must be correct because it is democratic. If someone is able to get the National Assembly to make a decision in their favour, say in a matter of taxation, they have won, because the National Assembly has put the stamp of “democratic” on that decision.

One agent who has an interest in getting the National Assembly to make certain decisions is the government. Governments have agendas they want pushed through, and they want to do that with as little trouble as possible from the lawmakers. National Assemblies are therefore under pressure to produce certain decisions and to do so without resistance.

The potential problem here is that this may push the National Assembly into making badly planned decisions because the government is desperate to get those decisions made that it has promised the electorate and to get the Assembly’s stamp of “democratic” on them. Such bad decisions are a big problem: since they are democratic, it is very difficult to overturn them and the country is stuck with potentially serious consequences of mistaken decisions.

Such mistakes happen. A case in point is Brexit. Then Prime Minister Cameron was able to get Parliament to sanction a referendum in a quick and easy decision without giving him any trouble or resistance in the matter. That was clearly a mistake. The country is now tearing itself apart and is unable to extricate itself from the mistake that has fallen down upon it. (Although it is my belief that Parliament will eventually find a way of correcting this mistake, it is, as we are seeing, very difficult to overturn a decision that has the legitimacy of a referendum behind it.)

The lesson is that National Assemblies should be able to make good decision and protected from making bad ones. Their decisions should be democratic but they should also be good, productive and workable, and certainly not counterproductive.

National Assemblies need assistance to manage the difficult combination of democratic and productive decisions.

They need the assistance, first of all, of protective procedures. Procedure is a boring matter for those of us interested in politics, but terribly important. National Assemblies need to impose rules upon themselves whereby they force themselves to not making decisions without careful scrutiny of consequences. They must avoid knee-jerk decisions because such decisions are in high risk of being bad. They must give themselves time and they must take themselves through routines of scrutiny. The Brexit decision, for example, was taken by Parliament without any preliminary work on what the consequences might be, and we are now paying the price.

They need assistance, secondly, in knowing what is in the interest of the people. One might think a good way of doing that is to ask the people, for example in a referendum. But we now know, from modern psychological research (such as by Daniel Kahneman who won the Nobel Prize in Economics for his research), that this is too simple. You and I and all of us are prone to making mistakes about our own good because there are mechanisms of bias at work in our minds. Our instinctive preferences are not necessarily what we really want. It turns out that people often change their minds and correct their preferences if they are given the opportunity to reflect and work on them with some care.

From this, political scientists are concluding that the popular will is not something that just exists in the population but what emerges from what they call “deliberation.” The German theorist Claus Offe has suggested that National Assemblies should have the support of more sophisticated information about “the will of the people” than raw expressions of preferences. He suggests “deliberative panels” consisting of a random sample of the population – he calls them “citizen deliberators” – charged with working their way through appropriate procedures from raw preferences to “reflective preferences” in important political matters. He thinks the panels should be constituted by some kind of lot among all citizens, that their task would be to help both citizens and lawmakers to form considered judgements, and that their authority would be exclusively advisory for National Assemblies.

As often, original ideas on first encounter seem odd, but this suggestion is really quite common sense. The reason we have National Assemblies, is that in a big population we for practical reasons must appoint a sample of the population to make decisions for us. If preferences depend on deliberation, the same logic would apply to the pre-decision process of forming preference. We will not get proper deliberation unless we design proper procedures to do it.

As for additional panels to advise the National Assembly, that’s the rationale of for example the House of Lords in the British Parliament and of various other “upper houses” in other national legislatures. Offe’s idea is slightly different, in how the panels are made up and precisely what they would do, but the idea is much the same.

 

HOW DEMOCRATIC IS A REFERENDUM?

In modern democracies, public policy decisions are usually made by assemblies of elected representatives, such as national parliaments and regional and local councils. They have a mandate from being elected by the people and decide on taxes, public services and the like, until they put themselves before the people again in the next election.

Sometimes, however, issues are put directly to the people to be decided by a referendum in which all voters can participate. This may be laid down constitutionally, such as in Switzerland and for some matters in some American states and cities. Or referendums may be ad hoc in that an elected assembly chooses to put some matters directly to the people.

These are two methods for making policy decisions: by elected representatives or directly in a popular vote. Both are democratic. Is one method more democratic that the other?

In the pure theory of representative democracy, the people elect representatives for the purpose of making policies on their behalf. When the elected representatives meet in assembly, that assembly is the people and when the assembly makes decisions, it is the people deciding. Constitutional thinking in Britain has traditionally been more or less in this line, and the use of referendums is therefore a bit of an anomaly.

What counts in favour of the pure theory is that when elections work as they should, the people elect representatives who are the more competent to make policy decisions and it is therefore in their interest to leave it to their representatives to govern.

In Britain we see this theory at work in the question of the death penalty. A referendum might well go in favour of reintroducing the death penalty but it is accepted that it should be left to Parliament to decide on the matter.

What counts against the pure theory is that elections may work out so that the assembly is not representative of the people and may therefore be biased and make policies that do not reflect the popular will.

A referendum is obviously a democratic way of making a decision, but it is not necessarily an effective corrective against bias.

First, this is not generally the rationale for having referendums. Where the method of referendum is a constitutional provision, the logic is usually that this is a way of constraining elected representatives, for example from taxing the people too heavily. Ad hoc referendums may be called for a range or reasons, some of which may be all but democratic, for example a government seeking to subvert the will of its parliament.

Second, while elected assemblies may be unrepresentative, so too may referendums. Although all voters can participate, not all voters do. A referendum is like a big survey that may get it wrong if those who vote do not make up a representative sample of all voters. In fact, referendums are likely to be unrepresentative because of selective bias in the motivation to participate.

Third, a referendum may not be an effective way of expressing “the will of the people.” We might think that people always know what they want and prefer and that it is only a matter of asking them. But if we think “the will of the people” is what they would have wanted if they had the opportunity to be properly informed about the matter to hand and to deliberate carefully with each other about it, we might suspect that a referendum is too crude an instrument and too much at risk of populist manipulation. If so, we might, in the interest of “the will of the people” put more trust in the indirect method of decision-making by elected assembly. We might do that if we thought (1) that representatives are likely to be better informed than the average voter and (2) that decision-making in assembly is subject to more rigorous deliberation.

Referendums are appealing because people participate directly. They have the ability to lend legitimacy to big policy decisions, which counts in their favour. But democratically, like the alternative method of decision-making by elected assembly, they have both advantages and disadvantages. The referendum method, although democratic, is neither more nor less democratic than the alternative. A democracy with a reasonably well functioning national assembly has, for reasons of democracy, no need for referendums. There may be various reasons for calling a referendum, of which adding democratic quality is not one.

PARTICIPATION IV: “THE PARTICIPATION STATE”

“Participatory democracy” is a bit of a misnomer. Democracy is by definition participatory: citizens vote and engage in the making of public opinion into a political force. On this level, the role of citizens is to make demands on the governance that is in the hands of representatives and officials.

But there is now a view that this is not enough of a role for citizens if democracy is to be vibrant and responsive. There is a demand not just for different policies but for a different way of doing politics.

A first response is to improve the channels for citizens to provide political input. Much can be done here, for example with techniques such as deliberative opinion polling. That is important, but still limited: citizens are allowed opinions, but the doing is by “those up there.” Can citizens participate directly in the doing?

They already are. People do voluntary work in the provision of services and make financial contributions to charities that do good works. Governments support this with tax exemptions for charitable givings. This is a form of participatory provision of public goods. More could be done by building on this experience.

Here is a proposal: Governments step up their contributions from tax exemptions to obliging themselves to match the contributions of citizen. Whatever citizens provide, either in money or labour, would generate an equivalent provision from the government. That would be a huge stimulus to citizens to engage in good works.

It would also represent a shift in decision-making. The deciding on what to do would be in the hands of citizens. They would have contributory support from the government but the doing would be theirs. We would then have a model in which citizens are in charge of deciding and doing, with the government in the more limited role of facilitator.

Say, as an example, a group of parents think the local school should offer pupils more physical education. They raise half the money to employ a teacher for the purpose, knowing that the government is obliged to match their contribution. The parents have decided what service should be offered and are able to get it done.

You might argue that it is the government’s responsibility to provide services. Well and good, but if you insist that all the doing must be the responsibility of the government, you are also saying that your own role can be no more than to put pressure on the government. If the starting point of this argument is that the participation available to citizens is too limited, why not welcome the opportunity to take charge directly in the deciding on what should be done? Why not welcome a participation that comes with both power and responsibility?

In the example given, there is a lot in it for citizens, in this case the group of parents. They get a teacher job established by raising only half of the money needed. For every £1 they provide, £2 go to the school. They get to decide what teacher job should be established – they have the power. They get involvement with the local school. They get an opportunity to shift a bit of their family spending from yet more consumption trinkets to socially useful doings under their own control.

There is also much in it for the government. As a result of its facilitation, it sees a useful service being provided. It has let citizens decide which service and helps realise something citizens want. It is cheap for the public purse. Not only have citizens raised half the money needed, much of the additional money the government puts in, it gets back. The money goes into a salary on which the school pays social insurance contributions and the new teacher pays income taxes. The teacher spends the remaining income, generating VAT revenue back to the public purse. That spending in the next round stimulates further economic activity, which generates further public revenue.

Step up a notch and imagine thousands and thousands of such initiatives throughout the land. You then have a democratic structure of social justice: doings are in response to needs identified by citizens and under their authority. Citizens massively decide on the provision of public goods, in a decentralised pattern. Ordinary people here, there and everywhere make decisions. They take power and accept responsibility. The government facilitates and supports their doing. Much of that doing will be in the form of job creation. You therefore have a structure that creates jobs, and by and large good jobs. And an efficient structure free from stifling bureaucracy.

In the aggregate, there is again much in it for the government as well. It offers a way out of the blight of public poverty within private wealth. Things get done which the government itself could not do. When the government is the doer, all doing needs to be funded from taxes. But the raising of new taxes for additional doings is now very difficult. By and large, tax revenues are committed to existing doings, and by and large tax extraction has reached its limit within the constraints of global capitalism. Cynically, the arrangement I am suggesting is a way to get people to pay voluntarily what they would not be willing to pay in taxes.

I have had in mind a country like Britain, which is relatively poor in the provision of public goods and in which tax extraction has (pretty much) reached its social limit, but which is rich in what might broadly be called public provision institutions. That includes, for example, institutions like the National Trust or English Heritage and many similar ones, many local, schools and universities, and a vast network of charities. These are institutions rearing to do more work in their respective fields. Along with a strong tradition of voluntary and charitable participation, they represent an underused national capital. With more stimulus, it would be meaningful for citizens to get together and create their own institutions, small or larger, to work for causes of their interest.

Obviously, there would have to be a regulatory regime for which private provisions would trigger an equivalent government provision and which institutions are eligible partners. Obviously, there would have to be oversight to avoid exploitation and corruption. Not easy, the devil is in the detail, but doable.

My argument is that with strong government encouragement in the form of a 100% matching commitment, a second level of public provision, grounded in citizenship participation, would be possible. On the first level, citizens pay taxes and the government provides services. This, roughly, is the “welfare state.” On the second level, citizens take in hand service provision and are able to do that thanks to government facilitation. This we might call the “participation state.”

 

WHO CALLED BRITAIN’S SNAP ELECTION?

There will be Parliamentary elections on the 8th of June. Parliament was scheduled to sit until the next ordinary election in 2020 but the Prime Minister, Theresa May, decided to call a snap election while reflecting on the matter during some days of walking in the Welsh hills with her husband.

Only it was not the Prime Minister’s decision, but Parliament’s. Technically, the Prime Minister recommended to Parliament to call an election and Parliament so did, the House of Commons the very next day.

This provision came in with the Fixed-term Parliaments Act 2011 which removed the power to call snap elections from the Prime Minister. The intention of this Act is that Parliaments will sit five years, that everyone will know when the next election will be, and that Prime Ministers should not have the unfair advantage of being able to call an election whenever it suits his or her side. However, the Act also empowered Parliament to trigger an election before the end of the five years term, if there are exceptional circumstances and by a two-thirds majority in the House of Commons.

But although the snap election was technically called by Parliament, in reality it was the Prime Minister’s decision. It turned out that the Act had not practically moved that power to Parliament.

The 2017 election is unnecessary and has been triggered for obvious party-political and tactical reasons. It is exactly the kind of surprise election the 2011 Act was supposed to prevent. Why did Parliament go along with it? Even the opposition on its own had enough votes to deny the Prime Minister.

One answer is that the opposition caved in because it would otherwise look cowardly. That may be so but is not a sufficient explanation. The 2011 Act puts a duty on Parliament to consider if there are extraordinary circumstances to warrant an early election. The House of Commons, rubber-stamping the Prime Minister’s decision without delay, can hardly be said to have examined the circumstances carefully. It was simply ambushed. Remember that the House is not in control of its own agenda. It was for the government to decide that the House would deal with the issue the next day.

This is what should have happened: The Prime Minister recommends to Parliament that it triggers an early election. The House of Commons puts the matter to its relevant select committee for deliberation. That would, firstly, give the House a bit of time to collect itself and would enable debate on the matter in the press and in the country, at least a few days of time. Then, secondly, the committee would prepare a report on the proposal, putting it into its constitutional context and going over arguments for and against. The committee might make a recommendation to the House, or possibly majority and minority recommendations. Only then, and with the aid of careful deliberation in committee, would the House deal with the matter in plenum. The House would have escaped the ambush and it would be legitimate to turn the Prime Minister down if the deliberation had not turned up persuasive arguments for an extraordinary election. It might even be that the Prime Minister would not have called the snap election out of fear of being thwarted by Parliament.

Parliament might still have decided to grant the Prime Minister her wish, but it would not have been a foregone conclusion. And it is certain that without an institutionalised procedure of deliberation, Parliament could not have decided otherwise than it did.

Some general themes:

  1. It is not enough to technically empower Parliament in a certain matter. Parliament must follow up by instituting proper procedures to exercise its power with effect. Such procedures must be binding on Parliament itself so that they cannot be manipulated. The House of Commons should take control of its own agenda.
  2. The House of Commons does excellent work when given proper work to do. But in decision-making, it does not have adequate procedures and does not do the work it should.
  3. As things stand, Britain does not have a safe system of political decision-making.

ELECTIVE DICTATORSHIPS

In America and Britain, the world’s core democracies, the legislatures, Congress and Parliament, are the weak link in the system of governance and in danger of marginalising themselves towards irrelevance.

We the people elect lawmakers to make important decisions on our behalf. An executive is constituted to collaborate with the legislature in the preparation of policies and to put into effect the lawmakers’ decisions. Among several reasons for this double structure of governance is that it increases the likelihood that decisions are well prepared and that governance will be effective. That’s part of the case for democracy.

Dictatorships do not have a similar double structure. There the making of law and the implementation of law is in the same hands. That increases the risk not only of despotic policies, but also of badly prepared decisions slipping through because there is not enough scrutiny in the process.

A problem with the democratic double structure is that there tends to be a tug of war between the legislature and the executive about who should do what. The executive invariably wants to dominate. If that is allowed to happen, the benefit of double structure scrutiny may go lost and democracy pervert towards de facto dictatorship. It falls on the legislature to stand up to the executive’s inclination to dictate.

In Britain, the tug of war has become visible in the preparation for Brexit. The government initially insisted that it should be in charge (by “royal prerogative”) with little or no involvement of Parliament until the government had negotiated a new deal with the European Union. However, that attempt by the government to claim for itself powers that belong to Parliament, failed when the Supreme Court ruled that the government did not have the authority to trigger Brexit without a formal decision by Parliament.

However, the remarkable thing in this process was that Parliament itself was unable to stand up to the government’s assault. We had the undignified spectacle of individual MPs appearing on the evening news and demanding that the government involved Parliament, while Parliament itself had no voice in the matter. Only when a private citizen brought the matter before the courts, could they lay down the government’s duty to collaborate with Parliament.

The government responded with issuing a Brexit Bill, as it then had to, but continued the battle for dominance. The Bill is only 130 words long, with no detail, and Parliament was given only five days to deal with it. Again, the spectacle of individual MPs popping up to complain and demanding that the government gives them more time. But Parliament itself has no voice in deciding on its own procedure.

In America, Donald Trump was inaugurated into the presidency and set about issuing a flurry of “executive orders” with wide reaching consequences. In so doing, he was claiming for himself the authority (the American version of “prerogative”) to make new law without involving Congress. This turned into a case study in the risks inherent in decision making without scrutiny. One sweeping order suspended entry into the country of all refugees for 120 days, of Syrian refugees indefinitely, and of all citizens of seven predominantly Muslim countries for 90 days. This was a manifestly bad decision, with unforeseen consequences galore and bringing global condemnation down upon America, a result of the decision having been badly prepared or not prepared at all. It was also a despotic decision, setting aside established American law in the matters concerned.

The order on refugees was brought before the courts by civic groups and immediately set aside as unlawful, at least in part. The remarkable thing, however, as with Parliament in Britain, was that Congress itself had nothing to say about the executive’s usurpation of legislative power. Some members of Congress grumbled but Congress itself said nothing.

At the time of writing, the outcome of these tugs of war is unknown. Meanwhile, the respective governments come under criticism for being power hungry and ruling autocratically. That criticism is valid, but superficial. The executive will, if it can, grab power. It is for the legislature to prevent it. In both America and Britain, the weak link in the system of governance is a legislature, Congress and Parliament respectively, that does not assert itself and fails to do its constitutional job. It is when the legislature fails that democracy can pervert towards elective dictatorship.

BREXIT – FLAWED PROCESS MEANS FLAWED RESULT

Britain does not have a safe system of political decision-making. Important decisions are made unilaterally by the government, the prime minister really, with Parliament having next to no role, except to finally ratify the government’s decisions. Prime ministerial whims prevail.

It is a law of public policy that good decisions depend on good process. If the process is flawed, the outcome is likely to be flawed. If you want good decisions, take care of the process.

The reason the British system is unsafe is that governmental decisions are not adequately deliberated on, scrutinised and tested. That’s why public policies are a parade of blunders, small and large.

In preparing for Brexit, the prime minister’s whim is to protect the prime ministerial system of government. This is the system once famously branded an “elective dictatorship” (by Lord Hailsham, in 1976). It is the system that allowed Britain to stumble into the invasion of Iraq on the then prime minister’s whim. In this system alternative views to that of the government count for nothing. Public policies are the government’s dictate rather than the outcome of national compromise.

In her Brexit speech yesterday, the prime minister made clear that decision-making is to be in the government’s hand and that Parliament’s role will be to ratify the outcome. This is an unsafe process towards a likely flawed result.

The process has already caused visible damage. Brexit is being made infinitely more confrontational than needs be. The divisions at home from the referendum campaign are not being healed. The views of the 48 percent count for nothing. Britain is causing a monumental fall-out between the democratic countries of Europe in an acrimonious divorce. Once Brexit was a fact, a coming together at home would have been possible, as would a rational collaboration between European friends towards an amicable settlement. But the process the prime minister is clinging on to is leading us to conflict on both fronts.

It is not too late to improve on the process. But it depends on Parliament not accepting yet again to be side-lined. It is for Parliament to temper the prime minister’s whim. It is not good enough for MPs to sit around on their backsides, sulk, and beg to be consulted. Parliament needs to assert itself.