the case against constitutional reform

Proposals for constitutional reform in the United Kingdom are examinedcritically. Ideas of ‘governance’ as posited by various accounts in theliterature of politics are compared with the simpler idea of ‘government’that is predicated within the reform programme. It is argued that changesin the site of public power, as well as in the reality of its exercise througha range of bodies beyond the traditional state, now provide a much morecomplex situation than the reform programme acknowledges. The papercalls for the development of a new technology of constitutional controlto capture fugitive power. The paper concludes with a brief examinationof some newer theories of radical or participatory democracy and theirpotential 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 incrementalprocess of informal change to an informal structure – even when it appearsin a radical version as in the Thatcher years. Given this, it may be only aslight exaggeration to describe Tony Blair as the most far reaching, radicalreformer of the formal edifice of the constitution since Oliver Cromwell. Theambition and scale of the Labour government’s reform project is as remark-able as its speedy implementation. The Blair programme provides fordetailed, institutional change to transform and ‘modernize’ government in

© Blackwell Publishers Ltd 1998, 108 Cowley Road, Oxford OX4 1JF, UK and 350 Main Street, Malden, MA 02148, USA

* Professor of Jurisprudence, School of Law, The Queen’s University ofBelfast, Belfast BT7 1NN, Northern Ireland

The origins of some aspects of this paper lie with an inaugural lecture given at The Queen’sUniversity 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 toacknowledge all those who made useful comments and suggestions including Tom Hadden,Elizabeth Meehan, Colin Harvey, and Thérèse Murphy – although of course they do notnecessarily approve of everything here.

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JOURNAL OF LAW AND SOCIETYVOLUME 25, NUMBER 4, DECEMBER 1998ISSN: 0263–323X, pp. 510–35

The Case Against Constitutional Reform?

JOHN MORISON*

Britain. The election promises of a human rights act, devolved governmentfor Scotland and Wales, an elected authority for London, freedom of infor-mation legislation and House of Lords reform have been given formalexpression within a year of the election. Other, more long-term reforms toaspects of the constitution are being advanced through, for example, theNeill committee on party funding, the Jenkins commission on proportionalrepresentation and the working group on the modernization of themonarchy. There have been unexpected and more indirect reforms too.Immediately after the election the Chancellor of the Exchequer announcedthe effective independence of the Bank of England, a move Nigel Lawsondescribed as a far more useful reform than any advocated by Charter 88. Itwas the Chancellor again who one year later fundamentally changed theway in which the business of government is conducted through a reform inthe way in which the public expenditure round is organized.

Standing above all of these modifications to the structures and processesof government there is the apparent triumph of the Northern Ireland peaceprocess. 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 directcontrast to the pattern of other reforms, it is a political act represented asa constitutional one. Nevertheless, from a general, British perspective itschief importance lies in its contribution to the general idea of constitutionalsettlement in the traditional grand style, whereby political arrangements aregiven institutional form.1

So what is wrong with the general package of reform as outlined andimplemented by the government to date? Is it simply, as William Hague hastried to argue, that it is unprincipled? The Conservative Party leader criticizesgovernment plans as ‘a ragbag of dangerous and destructive reforms’ thatundermines the history, traditions and identity that go to make up ‘ourunique Britishness’. For Mr Hague, ‘Labour has embarked on a journey ofconstitutional 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 declarationsetting out the principles behind the programme has not yet been honoured.

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© Blackwell Publishers Ltd 1998

1 More interestingly, however, there is another agenda underneath the high politics of politicalcompromise and the formal institutions of the 108-member Assembly, the British-IrishCouncil, and the power-sharing executive. The range of ways in which a strong equalityagenda is implemented through legal mechanisms, policy appraisal systems, and partnershipmechanisms, as well as some of the already existing techniques for getting the business ofgovernment done without recourse to politics, provides a genuinely new way of approachingold 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 mainproject fails) that perhaps signals the way in which a new and richer approach may developmore generally.

2 W. Hague, ‘Change and Tradition: Thinking Creatively about the Constitution’, speech tothe Centre for Policy Studies, 24 February 1998 available at <http://www.conservative-party.org.uk/> (visited on 27 April 1998).

Nevertheless, the document which contained that promise does refer to theaspiration that the objectives of the British Constitution should be:

to secure a government that is democratic and a society that is open and free. Democraticgovernment should ensure that those who hold power in the name of the people areaccountable to the collective wishes and interests of the people. Each individual citizenshould have equal rights and responsibilities in an open society where the aim is toguarantee civil liberty, social cohesion and economic opportunity.3

Much of this may seem to be at a level of generality where it appears onlyas an affirmation that the Labour government are ‘for virtue and againstsin’. However, a more careful parsing of this paragraph does identify thebasic values of liberty, openness, representativeness, accountability, andequality as well as a recognition that some of these values may have amaterial dimension.

The problem with the Labour government proposals is that they arewrongly 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 inWestminster and Whitehall are missing the point. Even when such reformsare secured by a new, more emphatic rights approach (in either the consumerrights version preferred by Mr Major’s Citizen’s Charter or the human rightsversion from the European Convention on Human Rights offered by MrBlair) they do not represent anything more than a very modest start on whatshould be a very much longer journey towards a more truly modern or evenpostmodern constitutional settlement. As we approach the twenty-firstcentury these reforms seem located in the past. The problem seems to bethat constitutional reformers have only now won debates that elsewhere weresettled long ago. The reforms on offer at best would seem to bring the UnitedKingdom 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 reformproject bears out this interpretation. Both in its more purely academic form,and in the genre that contributes more directly to political debate, there isa paucity in imagination about both how the business of government haschanged and how rules to contain it might now be devised. Only very limitedvariations on familiar themes are offered. The old machinery of repre-sentative politics and its accountable institutions of government can, it isthought, be given new relevance by the simple expedient of adding on newstructures – rather as if Charles Babbage’s original calculating machine couldbe made to work in the modern office environment by the addition of a fewIntel processors or new software cards.

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3 Labour/Liberal Democrats, Report of the Joint Consultative Committee on ConstitutionalReform (1997).

A joint report by Charter 88, Democratic Audit, and Professor PatrickDunleavy illustrates this tendency.4 The report brings together two of themore progressive think-tanks credited with giving impetus to the govern-ment’s reform package. At a time when political journalists describing thenew style of the Labour administration continue on the familiar theme ofthe fugitive nature of political power, whereby the political action appearsnot be found either in parliament5 or the cabinet,6 and the Commons PublicAdministration Select Committee is formally querying if the Prime Minister’schief press secretary has not taken control over many of the functions ofparliament and government,7 the report provides only a very limited analysisof the problem and the cure. It sees the crisis in representative democracyas arising simply from the fact ‘that the House of Commons is so dominatedby the Executive that it doesn’t function effectively’. The remedy proposedis 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 managementand inter-departmental issues’.8 The idea that a solution may be found simplywithin existing institutions is one that is common. The Constitution Unittoo puts faith in a whole pack of new watchdog commissions which would stand alongside the Nolan bodies in patching up the old fabric ofWestminster.9 Clearly such ideas are not radical although they are typicalof what now passes for progressive thought on the constitution.

At the more directly political party level there is little radical action beyondthe Labour Party line. The Liberal Democrats, seen by many (and not leastthemselves) as an important dynamo in the process of change have restrictedtheir role to holding government to its promises as outlined in the pre-election,joint consultative committee document.10 In its most recent pronouncementthe Lib-Dems seek simply more of the same – with a Supreme Court, a senaterather than a merely reformed House of Lords, and written constitution.11

This limited view within the constitutional reform constituency of theproblems of government and the future solutions contrasts with that whichcan be found in the writings from related disciplines. The literature ofpolitics, government and public administration generally has a much more

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4 Charter 88 et al., Reinventing Parliament. Available at <http://www.charter88.org.uk/pubs/reinven/reinparl.html> (visited on 6 August 1998).

5 J. Lloyd, ‘A Political Class – who needs one?’ Times, 20 March 1998, P. Riddell, ‘Doesanyone listen to MPs?’ Times, 23 March 1998, M. Parris, ‘The End of Opposition’ Times1 May 1998.

6 P. Riddell, ‘Cracks in the Cabinet Cement’ Times, 10 November 1997.7 Commons 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 complexityof the process whereby parliamentary sovereignty, strong cabinet govern-ment, and ministerial responsibility have been replaced with ideas of policynetworks, governance, and a hollowed-out state. The sophistication of theanalysis here shows in sharp relief the crude simplicity of the model ofgovernment and administration that is predicated in the constitutionalreform project.

At the same time the literature of political theory, in particular worklooking at radical, participatory democracy, suggests new approaches to theproblems arising from new forms of governance, and to the issues of legit-imacy that these bring. These are far in advance of anything contained withinthe constitutional reform model. Unlike the position of the constitutionalreformers, these views recognize that the genie of postmodern governmentcan not be returned to the bottle of the parliamentary state. Democraticlegitimacy cannot be achieved without mechanisms of enhanced democraticdeliberation. These must supplement or replace those straightforwardlyaggregative institutions of simple representative democracy which seek to turn individual preferences into policy through the expedient of merelycounting votes.

While the reform project generally limits itself to little more than updatingour seventeenth-century constitution to the nineteenth century, only fromthe New Labour Minister Peter Mandelson, has anything remotely radicalissued. In a keynote speech given to a seminar in Bonn in March 1998Mandelson 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 supportthis basic conclusion but perhaps attempt to anchor it in a brief overviewof some of the literature from other disciplines calling for a more complexunderstanding of how straightforward government has been replaced by amore difficult idea of governance. Mr Mandelson’s solution for dealing withthe slow demise of traditional constitutionalism lies in developing internetreferendums, citizen juries, and a whole range of direct democracy techniquesmade possible by the revolution in computer-based communication. It willbe argued here that while something more than the current reform agendais required it must be a new technology of democracy rather than simplynew techniques for delivering on the old system. This call for a repositioningof the role of constitutional lawyers will be supported by an examination ofsome of the writings of more radical democracy which tackle fundamentalproblems of legitimacy by developing ideas of inclusiveness and participationthat are necessary to truly invigorate democracy.

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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 governmenthas moved, and that orthodox constitutionalism has failed to pick up onthis.13 We complained, particularly, that the textbook tradition within consti-tutional law operates on outdated models and inadequate understandingsof 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 itsignifies is little different. Within much constitutional law scholarship gener-ally, as well as within the reform project particularly, there is still a tendencyto apply only a slightly updated version of the traditional Westminster modelwith its emphasis on institutions and their formal rules of procedure andorganization.14 The ever-present drive towards inclusiveness and comprehen-siveness that is characteristic of the textbook approach may now allowreference to Next Steps, the increased role of regulation and auditing, andeven the purchaser-provider divide. However, these are generally accom-modated within the old model rather than addressed as issues which providenew, fundamental challenges to basic concepts of power, accountability, andlegitimacy. It is not necessary to repeat the earlier argument in detail. Indeedthe intention now is simply to target similar disapprobation firmly at thereform programme – or at least the idea that the reforms on offer are enoughby themselves. The point is that although the textbook tradition and thereform 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 bedealt 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 findonly complaints that traditional ways of securing these values, such asministerial responsibility and parliamentary scrutiny are not working as wellas they should and perhaps ought to be augmented in familiar ways through

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13 J. Morison and S. Livingstone, Reshaping Public Power: Northern Ireland and the BritishConstitutional Crisis (1995), especially ch. 1.

14 There are of course notable exceptions, particularly in administrative law (see, forexample, M. Taggart (ed.), The Province of Administrative Law (1997) and N. Whitty andS. Millns (eds.), Feminist Perspectives in Public Law (1999). Nevertheless, perhaps amongthe 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) remainunique in so far as they begin actually to engage with new developments rather thanmerely 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 thathas not acknowledged the depth of the changes that really underlie the movefrom government to governance. If we take ‘government’ to refer to theconventional institutions and processes of the public sector and reserve‘governance’ for a more general process of simply providing direction tosociety with a minimal role for the traditional, formal institutions of the nationstate, it can be seen that many constitutionalists really still mean ‘govern-ment’ when they refer to ‘governance’. The cast of mind of most constitutionallawyers is still nowhere better described than by Griffiths as one which seesthe process of government through the constitution simply as:

the will of the people transmitted through its elected representatives who make lawinstructing Cabinet to administer affairs of state [in the public interest] with the help ofan 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 theadequacy 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 humanrights and Europe and, especially, judicial review. Within this model thereis, of course, a role for slightly more realistic, slightly less formal institutionalrestraints on political behaviour. It is to the political scientist – or moreprecisely a particular brand of political scientist – that these constitutionallawyers look for a flavour of the rough and tumble of realpolitik. Thisscrupulous demarcation is acknowledged by the equivalent genre of politicswriting reinforcing this view of the constitution.18 Thus, for example, VernonBogdanor can be found declaring in his recent Guide to ConstitutionalReform that ‘the British constitution can be defined in eight words: “Whatthe Queen in Parliament enacts is law”.’19

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16 For example, a government consultation paper, entitled Opening Up Quangos: AConsultation Paper (available on the internet at <http://www.open.gov.uk/m-of-g/consult97/qufore.html>) contains classic examples of hand-wringing over the secretive, unelected, andunaccountable nature of quangos. However, the suggestions for dealing with this hardlynew but certainly centrally important, aspect of modern governance involve little more thanextending the remit of the Commissioner for Public Appointments and trying to returnsome of their functions to parliament and the Scottish and Welsh bodies. (See also thefollow-up paper Quangos: Opening Up the Doors at <http://www.open.gov.uk/m-of-g/doors98/od>.) There is no effort to see quangos as fundamentally different to, and apartfrom, the formal constitution, still less to rethink fundamentally how basic democratic valuescan be realized in this arena and any of the others where the operation of government nowoccurs 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 centralgovernment’ (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 theorthodoxy and sharpen up their own approach. Of course, when visitinganother discipline it is always important to be careful.20 This is perhapsparticularly true when one is trying to borrow its insights to critique one’sown area. However, the existence now of a ‘revisionism’, arguing that maybethe 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 anadvanced one within the literature of politics and public administration andthat 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 clusteredaround the idea of ‘governing without government’.22 The notion of hollow-ing out of the state is, however, characteristic. There is a loss of functionsupwards to the European Union and through wider globalization, anddownwards towards agencies and the private sector. Kooiman,23 on the otherhand, emphasizes that modern governance is defined by being less about the direct intervention of government and more about the ways in whichthe 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 longereither fully descriptive nor fully acceptable, and provide a very incomplete notion ofhow governments function in contemporary advanced societies.24

There has been a shift from state controlled, line bureaucracies to fragmentedservice-delivery systems involving both the private and voluntary sectorswhere the state has less involvement and control. Straightforward privati-zation, market-testing, and the purchaser-provider spilt may have beenreplaced by newer, New Labour ideas of ‘contestability’, ‘best value’, andpartnership but the direction is similar. We are in a polycentric state or, asLuhmann describes it, ‘a centreless society’, full of complexity.25 Rhodesterms this ‘a differentiated polity’ which is:

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20 See review by B. O’Leary, ‘What Should Public Lawyers Do?’ (1992) 12 Oxford J. of LegalStudies 404.

21 See B.G. Peters, ‘Shouldn’t Row, Can’t Steer: What’s a Government to Do?’ (1997) 12Public 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 foran argument that extreme versions of the globalization thesis miss out on the central, pivotalrole that states retain in distributing and rendering accountable powers of governance thatoperate 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 fragmentationof policies and politics . . . [resulting in] . . . an increase in complexity and loss of centralsteering capacity.26

Government now is only one of many actors that may influence the courseof events in society. The formal institutions of government do not haveenough 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 relationshipto civil society which is now mediated in different ways to what is now avery different entity. Relationships have changed and lines have been blurred.

What is clear is that the traditional model found in constitutional lawscholarship and predicated in the constitutional reform project will not do.The parliamentary democracy model, involving the institutionalization of aclear border between the public and private sector, the institutional sepa-ration of politics and administration, and the nation state as the basic unitof government, is not adequate to contain these changes. There is a sharpcontrast 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 seemsto have percolated out to inform any of the thinking behind the proposalsfor constitutional reform. Indeed, if Albert Venn Dicey were to return todaythere is nothing in the reform project that would surprise or alert him tothe radical changes in role and site of government over the last fifty years.

From a political science perspective, Majone has acknowledged theexistence of:

significant structural changes induced by a ‘concatenation of several basic strategies’:privatisation, liberalisation and deregulation . . . fiscal retrenchment, economic andmonetary integration; and various policy innovations associated with the New PublicManagement paradigm.29

In response to this he posits the idea of a decline in the ‘positive state’ wherethe main functions are redistribution and macroeconomic stabilization; theinstruments used are taxing and spending; the characteristic institutions areparliament, ministerial departments; and the forms of political accountabilityare direct. In contrast, he suggests the model of the ‘regulatory state’ where

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26 R. Rhodes, ‘From Marketization to Diplomacy: it’s the mix that matters’ (1997) 12 PublicPolicy and Administration at 33.

27 Indeed, the constraints of previous policies as well as prior decisions on expenditure limiteven 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 ofChanges 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 EuropeanPolitics 77–101.

the main functions are correcting market failures; the instruments used are rule making; the characteristic institutions are committees, independentagencies, 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 containedin the straightforward parliamentary paradigm and the remedy that is asso-ciated with it of simply putting the state back in – albeit mediated throughreinvigorated parliamentary mechanisms, devolved assemblies, and otherstructures – and adding a better concept of rights. In particular, a more sophis-ticated account along these or similar lines ushers in ideas of increased useof privatization and contracting out, increased use of policy networks andprivate-interest governments, as well as a simultaneous reorganization anddecentralization 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 oncethe direct responsibility of the state can take many different forms. Therecan be direct privatization or partnerships between government, the privatesector, 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 democraticvalues 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

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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 betweenMember States, social partners, voluntary and civic organizations, European citizens andinternational bodies in the process of change’. The model for the partnership boards inNorthern Ireland funded by EU monies has been to involve local councils, the communitysector and business in particular projects but to make payment of grants conditional oncertain 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 WorksBetter and Costs Less (1993) containing many ideas from Osbourne and Gaebler causedPresident 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, hasaccepted the view that government duties should be tied to and subordinate to budgetarypriorities, and that essentially government can be viewed as similar to the private sector inso 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 relateddirectly to the number of civil servants, and that to decrease the establishment is to decreasethe size of government. Such views are interesting and may even be true. However there isno 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 theproper role of the state itself, are put under pressure when governmentbecomes more autonomous from the familiar nation state model. A properconstitutional reform project should address this fully. An analysis whichfails to understand the wider process, or at best bemoans the lack of fitbetween present arrangements and traditional limits, does not seem to havethe necessary conceptual apparatus.

Clearly there is room for debate over the extent to which autonomy andfragmented service delivery leads to (beneficial) bottom-up policy making,and at what expense in terms of control deficits.33 For some, efficiency (orat 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 andco-operation, and value for money and public service are mixed togetherthe whole idea of publicness itself becomes problematic.35

The ‘new public management’ – those changes that are occurring withinwhat remains of government apparatus itself – illustrates well what may belost when one attempts, as Sir Robin Butler puts it, ‘to have the bun andthe halfpenny’,36 by mixing private-sector efficiencies and public-sectorvalues. The details of these changes are well appreciated – even by someconstitutionalists (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 flexiblepersonnel regimes. All the changes contain an element of shrinking the corefunctions of government and using departments as facilitators rather than

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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 Parkhurstaffair provides a damming indictment of the excesses of modern private-sector managementtechniques 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 Prioritiesand 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, ‘TheFuture 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 14from the previous edition to accommodate new developments or E. Barendt, An Introductionto 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 Natureof Central Government in Britain at <http:/www.ncl.ac.uk~npd/whitehall/>.

providers of services.38 Essentially the policy function in government isretained by a very much smaller civil service establishment while the detailsof 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 hasbeen underpinned by informal codes of culture, education, and socializationas much as by any structure. Indeed, it was William Gladstone who remarkedthat 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 nowthe new structures in the public sector have undermined the traditionalgoverning ethos of public service. There are widespread fears, which havenot disappeared with the last election, that much public business still is beingcarried on with inadequate financial controls, failure to comply with rules,inadequate stewardship of public money and assets, and a failure to providevalue for money. The concerns that are presently manifesting themselves viathe creation of committees, codes of conduct, and ethics infrastructures40

demonstrate that the basic concepts are no longer working. Traditionallythe idea was that there would be a creative tension in the symbiotic relationsbetween the civil servant and the political master. The politician would bevisible, committed, publicly accountable, and temporary while the civilservant 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 changesthat began some thirty years ago, but accelerated in the late 1980s and 1990s,have operated to balkanize the traditional civil service structures andundermine the public service ethos and the networks of professionalaccountability which supplement the more formal structures.

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38 The overall thrust is perhaps well represented in the Department of Trade and IndustryWhite Paper on Competitiveness (1995; Cm. 2867) which makes a virtue of initiatives tocut ‘red tape’ and establish business links, including greater customer focus, increasedopenness 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, NewWhitehall?’ (1998) 13 Public Policy and Administration 13 for an indication that the trendtowards radical reform may increase.

39 Even as recently as 1994 the White Paper on the Civil Service (1994; Cm. 2627) identifiedthe ‘key principles’ of public service as integrity, political impartiality, objectivity, selectionand promotion on merit, and accountability through ministers to parliament.

40 See, for example, the Treasury and Civil Service Committee review which resulted in a newcode 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 workof the Machinery of Government and Standards Group within the Government Freedomof Information Unit at <http://www.open.gov.uk/m-of-g/mghome.html#1>. There arecodes with an international dimension too with the Council of the OECD adopting a setof principles in April 1998 entitled ‘Improving Ethical Conduct in the Public Service’. (See<http://www.oecd.org/puma/govrnance/ethic/pubs/rec98e.htm>.)

One of the effects of these changes has been to undermine the idea ofpublic duty in the traditional sense.41 The managerialism of the modern civilservice puts an emphasis on the encouragement of entrepreneurial values viashort term contracts, performance related pay, and an erosion of theestablished career structure. Increasingly civil servants must compete for theirown jobs and sometimes not on level terms with the private sector who arenot required to meet high standards on some non-financial criteria, such asthe provision of equal opportunities for women where internal standards areabove the minimum. Contract staff at senior levels, perhaps responsible forblocks of work or aspects of a programme of administration, may be drawntemporarily 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 satisfyingcustomers is inadequate to capture the complex picture of a civil servantwho 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 andthe particular client group served, to the rule of law and the conventions ofministerial 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 examplethe Citizen’s Charter use of quantifiable standards such as the length of timetaken to answer the telephone, does not capture the non-quantifiable aspectof the public interest. Indeed, there are arguments that the sort ofperformance-indicator-driven efficiencies that are sought simply are notavailable given the limits of the management technology available.44

Ideas of accountability too have moved beyond the traditional model ofministerial responsibility. These new structures mean that old concepts andcontrolling mechanisms are inadequate. For example, Judge, Hogwood, andMcVicar develop the analogy of a ‘pondlife’ of executive agencies, arguingthat ‘all too often agencies are treated as homogenous entities subject toreducible common issues of accountability’ whereas in reality there is ‘richvariety’ of organizational dynamics and degrees of transparency which

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41 See, further, A. Doig, ‘Mixed signals? Public Sector change and the proper conduct of publicbusiness’ (1995) 73 Public Administration 191 or J. Greenaway, ‘Having the Bun and theHalfpenny: Can old public service ethics survive in the new Whitehall?’ (1995) 73 PublicAdministration 357 for a nuanced account of the public service ethos in a period of dramaticpublic 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 ofthe 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 dissatisfiedwith their current performance measures. See, further, special forum on performancemanagement in (1995) 15 Public Money and Management.

present a whole range of very different accountability problems.45 Althoughthere has been an undeniable growth in judicial review, there seems littlepotential in relying on the ‘high constitutionalism’ of the Executive-Judiciaryrelationship to repair accountability problems in the reality provided by thenew public-private divide. Quite apart from the practical problems ofdeploying the courts in such a way, there are formidable legal obstacles. Forexample, privatization statutes have given regulators enormous and largelyunreviewable discretions, contracts remain largely immune from judicialreview, and the informal nature of network relationships suggest courts arenot well placed to effect supervision.46

The reality of governance is much more complicated than the reformersbelieve and straightforward reforms of the high or formal constitution cannot resolve adequately the outstanding problems. What is required insteadis a realization that governance in its various forms involves denying thewhole idea of comprehensive planning or general standards that seems to be implicit in traditional idea of reform. There is now no possibility ofreturning power to the control of a single institution – no matter howexpeditiously it devolves itself to the constituent regions of the UnitedKingdom and constrains itself with human rights standards. The reformproject has sighted the wrong target and specified the wrong tools to remedywhat is a much more complicated problem than is supposed. The increasedautonomy that markets and quasi-markets, the third sector and networksexercise means that it is now necessary to develop a sense of the complexityof the relations between different aspects of the state and the possibilitiesfor steering this. As Kickert sees it:

at a time when top-down direct government steering is increasingly being replaced byself-responsibility and autonomy of social institutions, and theories on central gover-nance from super-ordinated positions are being replaced theories on inter-organizationalnetworks and non-compulsive co-operation, the need for theoretical insights into self-governance is apparent.47

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45 D. Judge, B. Hogwood, and M. McVicar, ‘The “Pondlife” of Executive Agencies: Parliamentand “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 asimilar way, B. Quirk draws upon experience in local government to identify a ‘governancegap’ (and argues that the remedy for this requires ‘a new 360 degree model of publicaccountability . . . which is multi-dimensional and which admits the legitimacy of everyone’sinterest in the delivery of efficient, equitable, transparent and quality public services’). See‘Accountable to Everyone: Postmodern Pressures on Public Managers’ (1997) 75 PublicAdministration 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 issueon the American Procedures Act in (1986) 72 Virgina Law Rev.

47 W. Kickert, ‘Autopoiesis and the Science of (Public) Administration: Essence, Sense andNonsense’ (1993) 14 Organization Studies 261–78, at 262.

For Kickert the answer lies with developing an autopoiesis model based onthe work of Luhmann and Teubner, as adapted by the administrative scien-tist Morgan. This can explain, according to Kickert, how a network ofautonomous (autopoietic) systems behaves and maintains its organizationand identity, at least at the level of organizational meta stability, in a turbu-lent and complex environment . Within public administration the theoreticalinsights have involved developing an understanding of ‘rubber levers’, ‘looseleverage’, ‘fuzzy boundaries’, and all the indirect management techniquesthat are appropriate for the series of complex public private relationshipsthat exist as networks develop as an unintended consequence of market-ization.48 It involves recognizing that government is much more than thesimple pull-push mechanism of Prime Minister, Cabinet or civil serviceacting through legislation or spending and being simply accountable toparliament through settled rules of institutional behaviour. As Taylordescribes in his analysis of the Department of National Heritage, even adepartment which is relatively poor in terms of personnel and resources canoperate ‘in the politics of the sub-sectoral policy network’ where the futureof governance lies with:

the development of self-organising networks or even private government in which therole of the state . . . is to help set the conditions within which networks operate andhelp resolve the problems caused by complex patterns of interdependence which blur toextinction the distinction between self-regulation and state intervention.49

This notion of setting the framework is key to understanding the future ofgovernment. There are a number of possible strategies available50 and avariety of resources are at the disposal of both the centre and network.51

Traditional ideas of both power and accountability must be revised. Thereis, however, no universal steering mechanism or institutional pattern thatcan achieve total control. Governance is a complex, indeterminate, andlargely shapeless exercise but exercising democratic control over it is no lessimportant for that.

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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 ofNational 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 (forexample, 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, andreputation. See K. Dowding, ‘Model or Metaphor? A critical review of the policy networkapproach’ (1995) 53 Policy Studies 136. Rhodes sees the centre deploying control overlegislation, finance, capital expenditure, performance standards, and an electoral mandatewhile a group’s resources include specialized knowledge, control of implementation, a degreeof independent funding, and a group mandate. See Rhodes, op. cit., n. 22.

Even the socio-legal studies movement which ought to be leading the wayhere 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 ofparliaments, is far away from realizing that its analysis and its remedy hasmissed the point. There is a whole apparatus of government beyond theconstitution, and a problem about exercising democratic control over this,that the constitutional reform movement seems not to have noticed. But, asshall be argued in the next section, there is a role for the constitutionallawyer in developing a technology for delivering a renewed concept ofdemocracy in the new context of governance.

CONSTITUTIONAL RENEWAL BEYOND REFORM

What we call necessary institutions often are no more than institutions to which we havebecome accustomed . . . in matters of social constitution the field of possibilities is muchmore extensive than many people are ready to recognize.

Alexis de Tocqueville

The proposals for constitutional reform miss their target by focusing on atraditional agenda of restraining big government and reviving the role ofparliaments through the variable geometry of a newly devolved polity. Thegovernment may style itself New Labour but it is very old constitutionalismthat 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 thecomplexity and the fugitive nature of power and seek to exercise democraticcontrol in the new sites where power is exercised.

In addition to this, a programme of constitutional renewal should workon new ways to institutionalize democracy beyond parliaments, committees,and codes for conduct there. Orthodox constitutionalism seems only to beabout shoring up a liberal, individualist version of democracy which formany seems fundamentally incapable of delivering the legitimacy requiredto underwrite government in a changing world.53 Just the writing in polit-ical science and elsewhere should alert constitutionalists to the complexityof modern governance (as was argued earlier), so too should debates inpolitical theory alert us to alternative and more developed notions of democ-racy which require new versions of constitutionalism. Within these debates

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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) 1–60and 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 beconsidered 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 expectedto arise’. B. Barber, Strong Democracy: Participatory Politics for a New Age (1984) 4.

majoritarianism is not a synonym for democracy. Giving effect to what mostpeople want – perhaps with some limits established by an idea of universalor human rights – is not an adequate interpretation of democracy. What isrequired to reinvigorate the traditional aggregative structures of democracywhich simply count and give effect to individual preferences are participatorymechanisms which can be constitutive of us as citizens in a direct andempowering way. A constitutionalism underwriting such a version of democ-racy might well look very different from that imagined by constitutionalreformers. It might indeed challenge some of its cherished concepts.

The next two sections will attempt to sketch out some of the dimensionsof a programme of constitutional renewal. First, a brief examination will bemade of the levels at which power now operates and where constitutionalreform must now follow and engage. Secondly, some of challenges that moreradical theories of democracy throw down to constitutional lawyers will be introduced.

1. Capturing fugitive power: levels of constitutionality and a legaltechnology for democracy

A necessary corollary of the idea that reformers should develop a sense ofthe 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 underwritethe constitution (and perhaps some others including proportionality,subsidiarity, mutuality, and so on) must be given application at all levelsand in all places where public power is now exercised. This will involverecognizing the multiple levels where governance now takes place, claimingthese as legitimate areas for constitutional control, and developing a legaltechnology 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 andcabinet be the subject of democratic rule but so too will that power whichhas migrated upwards and outwards to other levels above the nation stateand 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 ‘acosmopolitan model of democracy’ which will require systems of account-ability and control to operate at least three levels. These include: (i) therelationships between domestic political institutions and key groups, agen-cies, associations, and organizations of the economy and civil society (bothnational and international); (ii) global issues beyond the control of nationstate, including financial flows, environmental crises, security, new forms ofcommunication, and so on; (iii) those regional and global regulatory and

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54 D. Held, Democracy and the Global Order: From the Modern State to CosmopolitanGovernance (1995).

functional agencies which make up part of the new international legal order.(Indeed, Held recognizes that his project may be even more wide rangingwhere he insists that ‘democracy can only be fully sustained by ensuring theaccountability of all related and interconnected power systems, fromeconomics to politics’).55

There is not space here to develop this much beyond a call to action thatrequires constitutional renewal to set its sights higher and consider how itcould develop a legal technology to bring about democracy at all appropriatelevels. At the European level this important aspect is moving up the agendaas the European Union acquires more and more of the functional capacityof the state.56 At the ‘domestic’ constitutional level, the way in which publicpower 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 bestvalue, contestability, and so on does not mean that there is no longer ademocratic agenda to follow. The project of constitutional renewal must beto supply the instruments to deliver basic ideas of equality, accountability,and democratic control at the points where governance now operates. Thesewill involve not only the traditional tools of information rights and dutiesand enforceable basic rights but also enhanced versions of these that can beused at the new levels and in the new contexts where governance now takesplace. Some aspects of the experience in Northern Ireland (where the tradi-tional institutional democratic controls have been even more moribund thanelsewhere) provide indications of what form these new controls might take.57

In particular, there is the potentially radical policy appraisal and fairtreatment (PAFT) initiative which introduces ideas of conditionality clauseswhereby other policies are contingent on certain targets – democratic orequality-based – being met.58 Other examples developed or suggested in theNorthern Ireland context too have wider application with, for example, moredemocratic indicators for performance and financial management which

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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 statushaving or not having a dependent, ethnicity, disability, age or sexual orientation . . . PAFTis not confined to issues of legality but encompasses the wider issues of fairness’ (CentralSecretariat 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 governmentin all forms to be aware of and responsive to a wider agenda of equality. It has the potentialto operate both at the level of contracts with private sector suppliers and with a Europeandimension where, for example, the EU’s Special Support Programme has PAFT-stylecommitments to ensure that partnerships between government, business, and the third sectorfunded under this programme pursue an equality agenda. (See n. 31 above.) According to

move beyond simple ideas of efficiency towards reconstructed ideas of publicinterest 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 thepossibility that institutions should be preference forming rather than simplyinstruments for realizing existing preferences – expressed either formally inelections or routinely in markets. These accounts come from a number ofperspectives 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 particularlyimportant distinction between versions of democratic empowerment whichoperate by increasing power through ‘exit’ mechanisms and those which seeka more integrative approach by developing ‘voice’ strategies.61 The emphasishere is on the latter and the aim now is to draw attention to those radical,communicative and participatory ideas of democracy that have the capacityto challenge the limits of traditional liberal, individualist democracy, pushdiscussion beyond notions of civic republicanism, and begin to address some

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some sources, PAFT has its origins in an (unpublished) United Kingdom-wide genderequality initiative in Whitehall (see R. Osbourne et al., ‘The Implementation of PAFTguidelines in Northern Ireland’ in Policy Aspects of Employment Equality in NorthernIreland, eds. E. McLaughlin and P. Quirk (1997) 129–30). It certainly has the potential tooperate beyond the Northern Ireland context and if the general policy were moreenthusiastically implemented (perhaps along the lines suggested by, for example, C.McCrudden, Mainstreaming Fairness? (1996); Benchmarks for Change: Mainstreamingfairness in the Governance of Northern Ireland (1998) or T. Hadden et al., Equal but notSeparate (1998)) it could provide a model for a very significant way of developing newnormative, constitutional mechanisms. Regrettably, however, the official response appar-ently has been to reduce this interesting possibility to a new and more general statutoryduty 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 RowntreeFoundation and Chief Executives’ Forum, People and Government: Questions for NorthernIreland (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) 75Public Administration 553 and D. Estlund, ‘Who’s Afraid of Deliberative Democracy? Onthe Strategic/Deliberative Dichotomy in Recent Constitutional Jurisprudence’ (1993) 71Texas 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 andSocial Governance (1994) which emphasizes voluntarism and asserts that ‘the negative rightto leave an association at one’s choice, and the legal defence of that right by the publicpower, is more important than any positive interventions by the public power to ensurethat the association is democratic’ (p. 51).)

of the big problems of legitimacy within formally democratic institutionsthat the constitutional reform agenda has missed.

Of course such ideas are not really new. They reach back to the polis ofclassical Athens by way of Hannah Arendt’s ‘council system’62 and JohnDewy’s assertion that ‘majority rule is as foolish as its critics charge it withbeing’.63 They involve rejecting, as Fishkin puts it, the ‘false dilemma’ that‘we must choose between the thoughtful but antidemocratic competence ofelites on the one hand, and the superficialities of mass democracy on theother’.64 If we are dissatisfied with democratic institutions the answer is notmore or even better refined aggregative democracy but more and betterdemocratic 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 deliberativeor discursive democracy, democratic legitimacy can be achieved only byenhanced deliberation. As Sunstein argues, electoral outcomes are suscep-tible to influence by various arbitrary, exogenous social, cultural or economicasymmetries.67 A more deliberative approach, however, is concerned withpreference building. It is an integrative as opposed to aggregative approachthat sees society as an essentially social construct where preferences areendogenously produced and empowerment comes from participation incollective 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 thespectrum of perspectives within the general approach. Within someHabermasian accounts, the emphasis is on ‘communicative action’ wherethe process of discussion itself and the practical stance of being reasonable,

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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 recourseto methods of discussion, consultation and persuasion’ and this ushers in ideas of enhancingdemocratic 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 Ethics554 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 PublicJudgment: 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 ofpractical 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 wherepeople demonstrate their plurality and thinking in the presence of othersand this produces an ‘enlarged mentality’.71 Deliberation here almost seemsto involve a transformative personal experience.72 For Mansbridge:

the presence of others encourages ‘we’ rather than ‘I’ thinking . . . when a society needsto discourage individual self-interest and encourage altruism, deliberation in public willoften 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 isjustified only because it defines the parameters of political conflicts andestablishes a common view.75

While there may be a certain utopianism in some of the new theories ofdiscursive 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 andmove the focus away from calls for equal representation in the arena ofdecision making (more aggregative democracy). In the more radical versionsthis ushers in a trenchant analysis of the limits of existing state structuresand a new idea of what democracy could be. It is this that is the source ofsuch theories’ challenge to the constitutionalism of the reformers who puttheir emphasis on simply reinvigorating the institutions and structures ofstraightforwardly representative democracy.

Ideas of participatory or dialogic democracy suggest that we no longerneed to see democracy within a traditional liberal model where it is, as

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70 As J. Habermas himself puts it in sketching a model of discourse theory, ‘practical reasonwithdraws from universal human rights, or from the concrete ethical substance of a specificcommunity, into the rules of discourse and forms of argumentation. In the final analysisthe normative content arises from the very structure of communicative actions’. ‘ThreeNormative Models of Democracy’ (1994) 1 Constellations at 6.

71 See H. Arendt, ‘The Crisis in Culture’ in Between Past and Future (1977) 220 and ‘Truthand 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 (‘FugitiveDemocracy’ (1994) 1 Constellations 11).

73 J. Mansbridge, quoted in L. Sanders, ‘Against Deliberation’ (1997) 25 Political Theoryat 360.

74 See Barber, op. cit., n. 53, p. 200. It is at this point that deliberative concepts start to movetowards those more communitarian approaches which suppose agreement on major politicalissues producing an idea of a common good and the justification of political devices of mildcoercion 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 tohighlight areas of disagreement (p. 286).

Habermas describes it, ‘the legal institutionalisation of an economic societythat is supposed to guarantee an essentially nonpolitical common good bythe satisfaction of private preferences’.76 Indeed we can move beyond evena Republican model where ‘democratic will-formation takes place in theform of an ethical-political discourse shared by the citizenry’ towards anidea of ‘the democratic self-determination of deliberating citizens’.77 Thiscan admit a very different form of constitutionalism. It is one which empha-sises process over institutions and seeks to maximize participation. Unlikethe reformers’ agenda it will not be enough simply to shore up the institutionsof 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 deliberativeperspectives) admit this approach requires ‘fair procedures’ including ‘mani-festly free and equal access to relevant deliberative arenas for purposes ofestablishing procedures, setting the agenda, and making final decisions.’78

This prescription can then be dissected to bring out ‘all the legally guaranteedliberties (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 newrights as such, although their basis may be slightly different from that usuallygiven. But in other hands the idea of participation can be interpreted tomake a difference and, indeed, in moving towards a more radical conceptof democracy that demands that we privilege participation, some of the basicconcepts of reform may be challenged.

In particular, calls for a participatory democratic approach will challengethe conflation of the state apparatus with the public sphere of discourse andassociation. 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 forexample, argues that existing state institutions are inherently exclusionarybecause of their masculinized nature.80) As Fraser complains, historicallythe landmark emergence of parliament as a place for both opinion formingand decision making swallowed up other public spheres of debate and

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76 Habermas, op. cit., n. 70, at p. 7 It does not seem to be necessary to subscribe to Habermas’sviews on how participation should be arranged in order to share this conclusion. See also thediscussion 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 whodevelops at the same time a sense of the complexity of the different modalities of powerwithin the state along with a realization of their inherently masculine quality: ‘the multipledimensions of social constructed masculinity have historically shaped the multiple modesof power circulating through the domain called state’ (States of Injury: Power and Freedomin Late Modernity (1995) at 177).

discussion, blurring the lines separating associational civil society and thestate.81 This needs to be corrected. The role of radical participatory democ-racy is to move beyond simply fiddling with parliament and other aspectsof representative democracy and reclaim a public space where truly equal,free, and participatory discourse can take place. This requires that we movebeyond a civic republican view where people reason together to promote acommon 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 andmutual respect is too rounded and tame an ideal of public . . . emancipatory politicsshould foster a conception of public which in principle excludes no persons, aspects ofpersons’ lives or topics of discussion.82

This may mean that we move beyond simply declaring public space (in thesense of that area between civil society and the state) as formally open andequally free to all. For Fraser, in her critical engagement with what sheperceives to be Habermas’s failure in The Structural Transformation of thePublic Sphere83 to fully recognize that status hierarchies of gender, race, andclass preclude full interaction, the very idea of deliberation in its present,formal form is actually inimical to properly discursive interaction and caninstead serve as a mask for domination.84

What is required instead is that the public sphere be rendered genuinelypublic as a place where discourse, opinion forming and, indeed, decisiontaking, can take place on a basis of real equality and participation. Socialinequalities must not be simply bracketed (as if they were of no account inthe idealized space of public dialogue). These inequalities in power and statusdo exist along gender, class, race, and other lines and they need to beaddressed in order that there can be a proper and effective representationand recognition in the democratic public of those voices that are oppressedor disadvantaged. Competing ‘subaltern counter publics’,85 reflecting a socialdiversity that is not equally represented in the single public of the formal

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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 statepower’. N. Fraser, ‘Rethinking the Public Sphere’ in Justice Interruptus: Critical Reflectionson 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 Critiquesof Moral and Political Theory’ in Feminism as Critique: Essays on the Politics of Gender inLate 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 extantstatus 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 AmericanProspect 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 thatexists outside and in opposition to the official, dominant public.

constitution, must be recognized and brought in to participatory democraticengagement on equal terms. This may well involve privileging them in someways. As Young argues:

where there are group differences in capacities, socialization, values, and cognitive andcultural styles, only attending to differences can enable the inclusion and participationof all groups in political and economic institutions.

Rather than inevitably formulating rights and rules in general terms thatignore difference and positing ideas of universal citizenship, the participatorymodel requires the recognition that ‘some groups sometimes deserve specialrights’.86 Young sees these as requiring institutional mechanisms and publicresources 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 experienceand interests in the context of the society’;87 secondly, there is the voicingof a group’s analysis of how social policy affects them and their policysuggestions in an institutionalized context ‘where decision makers areobliged to show that they have taken these perspectives into account’;thirdly, there is veto power over specific policies that affect a group directlysuch as, for example, ‘reproductive rights for women’.88

In order to achieve proper participatory, dialogic democracy at these threelevels it is necessary to add to the legal technology designed to capturefugitive power referred to earlier, a series of additional devices to maximizeparticipation in all the agencies, quangos, networks, and so on that makeup the public space within the new and more complex conditions of gover-nance today. These might include consultation requirements, vetoes, andconditions of minimum consensus as well as a range of rights for particulargroups and special duties placed on parts of government.89 Existing rights,such as those relating to freedom of information or requirements to holdmeetings in public may be extended and have different application when

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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 therequirement that all citizens be the same’ (p. 254). Compare C. Moufffe (ed.), Dimensionsof 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 toacquiesce in starkly uneven organization. The facilitative devices of contract and privatelaw will be used by those who in a sense are already organized.’ R. Unger, What ShouldLegal 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 somefurther 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 judicialreview too would have different application as a result of being based morefirmly in policing the processes of participation rather than with dealing withthe details of the political choice under attack.90 A constitution based onprocess would be committed also to devising and using more imaginativeways of assessing preferences, including citizen juries, surveys, preferenda,consensus conferences, and even focus groups.91 There may be a particularrole for new information technology here92 as well as, possibly, an additionalargument for proportional representation.93 Indeed, within some interpre-tations of the logic of the deliberative ideal, it is necessary for constitutionalreform to extend its remit to the correction of the social inequality thatinfects what should be inclusive public spheres and unbalances deliberationthere.94 All of this suggests a programme of constitutional renewal that ismuch more ambitious than the reform project that is currently underway.

This brief examination of the problems of reform has looked through alens provided by the more sophisticated accounts of governance that can befound in the literature of politics and government. These accounts suggesta more complex situation than that predicated by the reform programme.This in turn requires a more complex approach in order to capture fugitivepower as it moves to many levels above and below the traditional institutionsof the state. This paper has looked briefly at the prospects for a new rolefor constitutional lawyers in a wider renewal project. In addition to capturingpublic power in its new sites, such a programme might be informed by ideasof a radical, communicative, and participatory democracy. This would movethe concept of reform beyond the limits of traditional, liberal individualistdemocracy towards the establishment of a idea of the constitution as a

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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 makearrangements ‘for obtaining from the Forum the views of the community on social,economic and cultural matters’. More generally, see, further, E. Meehan, ‘DemocracyUnbound’ in Reconstituting Politics, ed. R. Wilson (1996).

92 See, further, the rather cautious analysis in C. Bellamy and J. Taylor, Governing in theInformation Age (1998). Also C. Walker and Y. Akdeniz, ‘Virtual Democracy’ (1998) PublicLaw 489.

93 A participatory rational for proportional representation lies not in the way that it simplyfactors 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 ofMadisonian deliberation’ by ensuring the presence of others so that the process of deliberationis 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 aprecondition for free and unconstrained deliberation’ and that ‘material inequalities cansubvert a structure of free and equal public deliberation by translating into sharply unequalcapacities for political action’ (On Democracy (1983) 157–8.) Fraser too maintains that ‘itis a necessary condition for participatory parity that systemic social inequalities beeliminated’ (op. cit., n. 81, p. 80).

preference-forming network rather than simply a mechanism for containingrule. This project would be bigger than anything imagined by the reformprogramme to date and a fuller exploration of radical democratic theorywill suggest a more ambitious role for the constitutional lawyer and a moresatisfactory and legitimating project of constitutional renewal.

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the case against constitutional reform

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