Taking deliberation seriously: ‘considered judgment’ from the Brexit referendum to the pandemic

There’s a way of conceptualising where the UK constitution has got to that we might call Diceyan populism. I’ve tried to set this out, in a preliminary way, in an article for Red Pepper. It holds that on certain matters the UK Parliament is obliged, as a matter of convention (not law), to turn a decision over to the people through referendum. In this way it affirms a version of popular sovereignty. But – in contrast to the democratic constitutionalism I sketched earlier – this view still asserts the legal sovereignty of Parliament, and so doesn’t have any truck with the idea of a codified constitution that legally constrains Parliament. This, at any rate, is one way of making sense of the way Brexiteers, like David Davis MP, seem to want to say that we are in a regime of both popular and parliamentary sovereignty!

(Dicey himself, I should say, was keen to introduce referendums into the UK’s political system. But he thought of them only as brakes on Parliamentary initiative. He saw referendums as a ‘People’s Veto’. But Dicey did not support using referendums to force Parliament to do things for which there is no majority in Parliament itself.)

So to sum up, I’ve made two points about ‘popular sovereignty’. First, popular sovereignty has to involve deliberation and not just voting. It needs to be institutionalised in a way that reflects this. Second, popular sovereignty needs to be related to creating – and amending – a codified constitution, to a domain of ‘constitutional’ politics that sets rules for the more usual world of ‘ordinary politics’. In contemporary Brexiteer thinking, however, popular sovereignty is seen neither as essentially deliberative nor as essentially linked to a codified constitution, a higher law that is entrenched and binding on Parliament.

I haven’t, however, answered the critical point you raised about the ‘unitariness’ of popular sovereignty!

A unitary people and authoritarian regimes

RB: Yes I’d like to come back to that, picking up your point about referendums becoming a new ‘convention’ in the Diceyan sense. If indeed we are to see a new convention emerging from the use of referendums as in 2016, it doesn’t seem to enshrine popular sovereignty (or popular anything) in a new way over parliamentary sovereignty, but rather a much stronger executive over both. What happened the day after that referendum, was that the people and Parliament were told ’Brexit means Brexit’, thereby suspending the entire debate, despite the fact that only now, years later, has anyone been able to hazard a guess at what Brexit probably does mean – now that there is no chance of regulatory alignment, all the options that were still perfectly possible a short while ago, but simply are not today.
Of course, over that time a battle has been going on about how hard that Brexit had to be. But it wasn’t the people who won that battle, was it, but the media, the Establishment institutions and processes that have stood in for deliberative popular sovereignty. This has only served to enhance the power of the executive, hasn’t it? Didn’t the Conservative Party precisely plan to create a ‘new convention’ that would steer very clear indeed of popular sovereignty?

SW: There is in an immediate and important sense much more stability for the executive in relation to the UK Parliament because Johnson has got a large majority. But we are still in a situation where the SNP swept Scotland, and the nationalist vote in Northern Ireland was greater than the Unionist vote. So I think there are still major constitutional challenges with lots of opportunities for deliberative democracy in terms of how we address them. The idea of holding a citizens’-led Constitutional Convention on the future of UK or post-UK democracy, for example, is still highly relevant.

RB: Is that likely as well as relevant?

SW: As a government-sponsored process over the next few years, no I don’t think it is likely at all. The government, if it looks at the constitution – and it looks as if they are interested in doing that – will probably press ahead on its own and almost certainly won’t use these kinds of deliberative methods or use them in a way that I would like to see.

But there is at least one initiative – the Citizens’ Convention on UK Democracy – which is independent of government. This can still go ahead at some point, and depending on how much it is able to engage the public’s interest, the process can feed into a longer-term process of constitutional reform, maybe doing some groundwork for a future reforming government that would put government backing behind a constitutional convention process.

RB: Scotland will be continuing with its Future of Scotland Citizens’ Assembly series, I imagine?

SW: Yes, though its work has been interrupted by the Covid-19 crisis. And the Climate Assembly UK, a Citizens’ Assembly on climate change at the UK level, is another interesting development, though again it has had to stop for the moment due to Covid-19. And if we return to the government’s Coronavirus Bill of March 2020, there is a strong case for building in something like a Citizens’ Jury as a body that can review the legislation periodically to help assess if the emergency powers it creates are still justified.

But it’s important to take a closer look at the idea of the ‘Citizens’ Assembly’. The idea is actually very ambiguous and its political, constitutional significance can vary a lot depending on how the ambiguities are unpacked. Some key questions are: Who sets the assembly up? Who sets its’ agenda? Who decides what happens to its’ proposals?

Imagine a Citizens’ Assembly is set up at the initiative of politicians to pursue an agenda wholly chosen by the politicians and that all of the recommendations go back to the politicians to decide what to do. This Citizens’ Assembly might be a useful consultation device, but it is not one that necessarily advances the expression of popular sovereignty or involves much empowerment of the public. This model of a Citizens’ Assembly can fit easily enough into authoritarian regimes.

So, while Citizens’ Assemblies are very good deliberative mechanisms in and of themselves, we do have to think about how they fit into the wider political system. Are they just being used as a consultation mechanism by a political elite, or are they a mechanism of popular empowerment – potentially against the elite? Although I don’t expect much in the way of Citizens’ Assemblies from the Johnson Government, if they take this purely consultative form they don’t necessarily challenge the power of those in government very much.

RB: But if they contained anything deliberative wouldn’t they still be going in exactly the opposite direction from this new ‘convention’ we are talking about, grounded in the notion of a unitary people’s will? Couldn’t one say that to that extent they offer a demonstrable mechanism for an alternative path which is about the empowerment of people, so that they can address the common good.
One reason why I have become so interested in the challenge to the status quo posed by these deliberative mechanisms is that I was taken aback at how little the opposition in Parliament was able to articulate, for the purposes of public engagement, the attack on deliberative democracy that they were undergoing month after month after the Brexit referendum. This must be to do with the general absence of awareness of this democratic core from our everyday vocabularies, mustn’t it? People throw around their definition of democracy without the least sense of its dependence on a healthy deliberative element. Would you agree that this literacy is vital if there is to be any deeper public engagement in these matters?

SW: Yes. Could Brexit have been handled in a different way, one that would have encouraged the deliberative sensibility you refer to?

In principle, a government could have said in 2016: ‘We have just had this referendum. It was a very narrow decision to leave. We are going to honour the decision to leave, but at the same time, because this has been so divisive, we want to try and move forward in a way that speaks to the concerns of the 48%.’ One can see here a potential application of Danielle S. Allen’s idea of ‘political friendship’, set out in her book, Talking to Strangers, which emphasises the importance of citizens honouring and reciprocating one anothers’ sacrifices as losers in political contests.

This might then have led to some sort of Citizens’ Assembly of the kind that the UCL Constitution Unit organised, where they had 48% Remainers and 52% Leavers using the assembly to identify some principles and guidelines for the form that Brexit should take. Or, a Citizens’ Assembly could have considered whether there ought to be a second referendum on any final deal. But the Citizens’ Assembly didn’t come into discussions seriously until very late on in the Brexit process – really too late given the timescale that is needed.

And to do the job that we are thinking of – of building a wider deliberative sensibility – it would have to be the focus of popular commentary and able to take the wider public on its journey, so that when its proposals emerge they have credibility and legitimacy within that wider public.

One of the potential problems of the Citizens’ Assembly as a model is that while it looks as if we know how to construct a quality deliberation for the citizens who are in the Assembly, it is not so clear how to carry this out into the wider public sphere. This is a serious challenge, I think.

RB: But this was never called for by anyone in Opposition until as you say, far too late, when it looked like a desperate way of simply avoiding Brexit altogether… But had canny democrats been in the ascendancy earlier on, would it ever have been enough to call for one overarching Citizens’ Assembly, for a rich debate over what kind of Brexit people either really wanted or were willing to live with? Given the incomplete devolution of democracy in the islands of the UK and the problems bequeathed by this that as you point out are now set to cause considerably more instability after these elections, wouldn’t we have had to have called for a Citizens’ Assembly in every region of England and every nation of the UK if we were to get to first base on empowering people?

SW: This comes back to who are ‘the people’ when we talk about popular sovereignty. There is a question here about how we think of UK democracy. If we think of the Ukanian model (to use Tom Nairn’s term), there is a people of the UK. Therefore, at least on certain issues, we can just have one Citizens’ Assembly at the UK level to deal with issues that are particular to this UK-level people or demos.

But there is another model that is more plausible, which is to recognise that the UK is a multinational, even – in terms of where could go – federal, construct. There are also arguably important regional differences within England. So you need to think of the UK more as a collection of peoples, rather than as a unitary people or as merely a unitary people.

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A unitary people and authoritarian regimes

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