Oral evidence from Jack Straw and Michael Wills on British Bill of Rights and Responsibilities

Uncorrected Oral Evidence given by The Rt Hon Jack Straw MP, Secretary of State and Lord Chancellor and Mr Michael Wills MP, Minister of State, Ministry of Justice (video while it lasts) on Privileges and Obligations Rights and Responsibilities.

Straw and Wills continue to fail to tell us what responsibilities we have or will have.

Some highlights:

Jack Straw: To say what everybody knows intellectually, or if they think about it they appreciate that with rights go responsibilities, with privileges go duties, but it is not necessarily obvious to people because that fact is reflected in parts, although not all explicitly, of the European Convention. Therefore it has certainly been my judgment for a long time, and it is shared now across government, that we should have what amounts to a single text which says yes, these are your rights, but along with rights goes responsibilities. I was asked this question earlier today: how would I explain that in my constituency? I would actually find it very easy

But sadly even though it is “very easy” Jack Straw still hasn’t explained what our responsibilities and duties are.

Also I get the impression that we are going to end up with a non-justiciable bill in terms of rights. Responsibilities on the other hand…

Q423 Chairman: … perhaps on that point you make about Germany having rights that go beyond the Convention, what will the Bill of Rights do that the Human Rights Act does not do? Will it give people additional rights beyond as the general constitution?

Mr Straw: It does two things: one is it brings out that with rights go responsibilities. I could go into this.

I wish he would, rather than rambling on and on.

The Earl of Onslow gives it a shot:

Q425 Earl of Onslow: Secretary of State, those of us who come to the Bill of Rights from what can best be classed as an old-fashioned libertarian state, it seems to me there are two points here: one is the only responsibility the subject has is to obey the law and nothing else, so you cannot legislate for any other responsibility.

Straw doesn’t really understand Paine at all (see older article):

(in his intro) Although the balance between rights and responsibilities is not symmetrical, rights of the Convention kind are those which we have against the otherwise over-weaning power of the state. Responsibilities tend to be more horizontal to your neighbour in the biblical sense as well as to the community which sits above the state. …

Well no, our rights do apply to interactions between individual members of public and there is an obligation on the Government to ensure that we can enjoy them. Also the Government (and community) has responsibilities to us (see later for example).

(so in response to Earl of Onslow)

My Lord, I am not sure where you are putting Tom Paine, but funnily enough I quoted Tom Paine in a lecture I gave in October where he was making the point that it is important that rights and obligations are reciprocal. He said: “A declaration of rights is, by reciprocity, a declaration of duties also. Where there is my right as a man is also the right of another and it becomes my duty to guarantee as well as to possess.”

Well yes, that’s what Paine said – but he didn’t say there was a whole set of additional responsibilities. What he said, contrary to Straw, that rights and duties are symmetrical – they are reciprocal. If you enjoy freedom of speech, for example, it is your duty to ensure others their freedom of speech.

After a while Straw gives us an example of a responsibility:

In the law children and parents have various rights of education. What is also in the law, and we have tightened this, is responsibilities on parents not only to make sure their children go to school, but all sorts of more explicit responsibilities. All parents do not realise this. There is text used in other countries that there is a case – I put it no higher because this is a developing process – for saying to parents yes, you have rights and so have your children but you have also got responsibilities and this is what it says and this is what through representatives and debate has been agreed by the British people.

Dr Harris gives him a hand:

Q436 Dr Harris: On this question of responsibilities – I am not going to go far because I think Lord Morris has some specific questions on this – the state has some responsibilities within the system, for example, to remedy and implement judgments of the Strasbourg Court in good time. The Connors case, the Hurst case, which is actually about citizens who the European Court of Human Rights thinks have a right to vote – some prisoners – and then some of these Northern Ireland cases – Jordan, McKerr, Finucane – they have been sitting around for a long time. In my view the Government has abrogated its responsibilities, its part of the deal, by not sorting these out. Would you accept without taking personal responsibility perhaps that there is a responsibility to do your side of the deal?

Mr Straw: I accept that in general terms, of course, that Parliament has all sorts of responsibilities and, self-evidently, the Executive has responsibilities to meet its obligations in international instruments that we have signed. Our record in terms of compliance with Strasbourg judgments is pretty good and better than some Members of the Council of Europe. We are running a second consultation on prisoners’ voting rights, which is a tricky issue.

Straw is more concerned, I think, with our responsibilities to the state, not the state’s responsibilities to us!

Next Dr Harris asks how he “can possibly claim my rights in a non-selfish way” in relation to the use of this word by Straw & co.

Mr Straw: It is a nice point you have made but I was thinking about the kind of situation which our constituents encounter where, for example, they will encounter bad behaviour by juveniles, sometimes parents who assert the right of their child to do essentially whatever the child wants to regardless of its impact on other people. Getting across the sense in a text that there are responsibilities as well will not overnight for a second change that behaviour but it will actually enable people to have a better argument with such people when they are asserting that they have legal rights, which of course is true. You also remind them that they have responsibilities as well.

Later on Wills weighs in:

Mr Wills: If you focus on the word “claim”, I think what the Secretary of State is saying as well was that these rights are very precious and that there is a tendency among some people to assert them promiscuously and that devalues them.

What?!

What is important is that when people lay claim to these things they are precious. They have been fought for, they are rightly entrenched in our society but they are precious and they should be asserted and claimed with a proper sense, as the Secretary of State is saying, of the responsibilities that go with that inevitably.

Q438 Dr Harris: Free speech only if it is responsible.

Mr Wills: That is not what I am saying. You know as well as I do the famous analogy of shouting fire in a crowded theatre.

In fact the analogy is when someone falsely shouts fire in a crowded theatre with the intention of causing panic.

It’s related to unlawfully interfering with others. Of course we have a responsibility to avoid doing that! It is reciprocal to each of us enjoying freedom from unlawful interference.

Baroness Stern later on says “I cannot imagine who this person is” who is promiscuously claiming his rights.

Wills: … The more the majority of the British people feel that these rights somehow privilege unfairly certain groups of people and they are encouraged to do so by people who claim, often usually without any justification whatsoever rights, that is the point. That is what I mean by promiscuous. You can claim these rights but it does not mean that the courts will uphold them. They are often based on a profound misunderstanding of what the Human Rights Act actually does, but we have to be very clear about that. I think that is the point we are trying to get across.

I’m not sure what we can do about people believing the wrong thing except better education and persuading the media to stop (wrongly) banging on about how awful it is that immigrants (for example) are complaining about changes in immigration rules (you know the newspapers I mean). I’m not sure how this fits into the topic of a British Bill of Rights and Responsibilities – I’m not sure how we can ensure an aggrieved person doesn’t ‘selfishly’ claim his rights when we all ‘know’ that he doesn’t really deserve them. Doesn’t this go with the territory? It is for the courts to decide whether or not he has a case.

This point develops later, from Straw’s response to Lord Morris answering the point about shouting fire in a crowed theatre and asking “will the exercise of responsible behaviour go further, as you see it, than just obeying the law?”

Straw: If you are saying what duties are going to be enforceable, by definition anyone’s wish can be enforced which impose an obligation on individuals which are the subject of enforcement either by the criminal or civil law. That is a tautologous statement of obvious truth. There is a wider issue here which is how do you better get people to live as neighbours in the biblical sense to understand that they do have responsibilities to people they are living alongside and that of course the law is the longstop as a way of arbitrating these disputes, but to enable people to be better neighbours. Upbringing and all sorts of things play a fundamental part in this and also the conditions in which people are living.

This doesn’t seem like a legal problem to me but a social one, particularly if the responsibilities are non-justiciable. Is this just another case of using the law to “send a message”? I think it is. It is quite sad.

Lord Morris then pursues a line of questioning relating to whether you will be allowed to enjoy your rights if the state finds that you have not held to your responsibilities. Straw’s reply (after the third question), in short, is that “it depends”:

Going back to my education example, children have rights and parents are the means by which those rights are exercised, but the parents also have responsibilities. In practice now, but in any kind of encapsulation of rights to education, rights for children, these two will need to be balanced. I am not anticipating that such a statement of rights would be directly justiciable but it would be interpretive and when it came to remedies in respect of explicit rights I would hope the courts would take into account how far parents had exercised and showed responsibility that these things are not a one-way street.

Wills later says,

Rights are not contingent on discharge of responsibilities. In answer to your checklist, no, of course not, but there are consequences for people not fulfilling their responsibilities and the Secretary of State just sent it out. The fact that some of those consequences may actually mean that one of your rights is temporarily forfeited, if it is not the same thing, the punishment is in the law. The basic human rights say the same and so they should. It does not mean there is no value in articulating responsibilities for all the reasons the Secretary of State has so cogently outlined.

So in plain (indeed, correct and unequivocal) English, Labour want rights to be contingent in some circumstances on discharge of responsibilities.

Wills says something rather annoying about freedom of information:

Q443 Earl of Onslow: The answer is I completely agree with the Human Rights Act. I want it to be better. I do not think the Human Rights Act goes far enough.

Mr Wills: This Government does fundamentally agree with you in a whole range of ways, not just on the Human Rights Act, but the Freedom of Information Act gives huge power to the individual to be stroppy, as you say, against the state and that is right and proper and we are proud of it all.

The individual can be stroppy but it will be years before he is satisfied (if ever) given the propensity of our lovely government to only free information when it suits them, fighting all the way if it doesn’t. Is Wills proud of the fuss over MPs’ expenses? Is he proud of the fuss over the OGC ID Card Scheme Gateway Reviews?

It is all very well having these aspirations in legislation but if it doesn’t mean anything to Government what is it supposed to mean to us?

What rights and responsibilities are we talking about?

[hat-tip Tim Worstall]

David Selbourne in the Guardian:

In the convergence of these positions, elementary truths have been forgotten. The largest one is that without the fulfilment of the citizen’s duties the free society cannot endure. Take away the sense of duty to community, environment, polity and nation, and collapse awaits.

Yet the notion that there should be some reciprocal relation between rights and duties is held by many to be wrong, an imposition, even described as an “impertinence” in a recent submission to the parliamentary committee on human rights.

Is Selbourne referring to Henry Porter, who wrote to the Committee that:

I want to say something about the phrase “rights and responsibilities” used by Jack Straw and Gordon Brown in respect of a new bill. This springs from the telling belief among ministers that rights are somehow in the gift of the government and that they are entitled to require people to sign up to a list of responsibilities in exchange. This is arrogant nonsense. The citizen’s responsibilities are defined by common, civil and criminal law, and ministers display a constitutional impertinence by suggesting otherwise.

Porter seems spot on.

Back to Selbourne:

To expect the fulfilment by the citizen of his or her duties is no impertinence. It is essential to liberal democracy. Indeed, government ministers today speak hesitantly of a need for “constitutional renewal” or for a more “contractual” relationship between citizen and state. Under it, the performance of civic duties would be made a condition for the gaining of rights, many of the latter now routinely and shamelessly exploited by rich and poor alike.

A major problem is that the Government hasn’t been at all clear about which civic duties we should perform or what responsibilities we have and the rights we’ll ‘gain’ in return for fulfilling those duties and responsibilities.

If for example David and the Government are saying that I should perform some community service or pay my tax on time and I will be ‘granted’ freedom of speech or the right to a fair trial, they can [expletive deleted] off.

If on the other hand my responsibility is to look for work while I’m on Jobseeker’s allowance, well that seems fair and surely that’s something we are already doing and enforcing.

The other problem is that you can get your hands off my rights and freedoms, they are not for you to grant but for me to decide what I am prepared to give up in return for cohabiting this island with the rest of you.

A Bill of Obligations and Privileges

Jamie K has it right.

Kick-starting a national debate on a Bill of Rights and Responsibilities

Minister of State Michael Wills MP:

… Where power is located and how it’s distributed, and how it can be exercised, go to the heart of the most elemental human aspiration – for each of us, as far as is practicable and consistent with the ability of others to do the same, to live our lives fulfilled, peacefully, free from arbitrary interference and control by others.

This always matters – but when times are good it’s sometimes easy to forget the importance of the equitable distribution of power. When most are prospering, concerns about whether people have adequate control over their lives may step into the background. But when times are tougher, and people feel more vulnerable and threatened, then a sense that they do not have adequate control over their own life, and that others are controlling it for them, then that creates risks for the peace and stability and cohesion of society. We saw this over and over again in the nineteenth and twentieth centuries.

We should never be complacent about our constitutional arrangements and whether they adequately deliver the fairest possible distribution of power in our society.

That’s why we launched the Governance of Britain programme, as the next stage of the government’s constitutional reforms. It’s driven by two assumptions. First: in healthy societies, power is never concentrated in the hands of a few but diffused as widely as possible – and flows freely. Society is diverse and complex – so too must be the distribution of power.

And second that the struggle can never cease – power always clusters, chemically, round the powerful. And it requires rigorous and vigorous activity to reverse this law of nature.

This is never easy – it raises difficult questions about how best to strike the balance between the individual and the community,

Well that’s true.

John Stuart Mill warned us against the “tyranny of the majority“, and Alexis de Toqueville wrote about the “unlimited power of majority, and its consequences“.

Lord Salisbury said, “By a free country, I mean a country where people are allowed, so long as they do not hurt their neighbours, to do as they like. I do not mean a country where six men may make five men do exactly as they like.”

I’m sure such discussions will continue for many years yet.

how best to secure an appropriate relationship between the rule of law and parliamentary democracy,

Parliamentary democracy should be subordinate to the rule of law – except that Parliament may not bind its successors.

how far should executive power be fettered by the courts and in what ways,

It seems to me the executive should be slapped down when it breaks the law, and the agents of the state involved should be personally penalised.

Let’s take Raissi, for example. He was arrested (at 3am, with his wife and brother), accused of being a terrorist involved in 9/11, held for seven days, ‘de-arrested’, immediately re-arrested, held in Belmarsh for four and a half months, released but prevented from leaving the country, undoubtedly interrogated a number of times, his house probably turned upside down, his career ruined, and refused compensation, all based on unfounded allegations, lack of reasonable cause, non-disclosure of evidence, and abuse of process.

Hopefully the Home Secretary will back down, and compensate him, but that is taxpayer’s money, not the Home Secretary’s, nor that of the people responsible for the unfounded allegations, lack of reasonable cause, non-disclosure of evidence, abuse of process, and damaging of Raissi’s life, and it seems to me that those people have escaped scot-free.

how best to balance the scrutiny and accountability of the executive by the legislature with decisive government.

Pretty much all information should be available as a matter of course without having to resort to the Freedom of Information Act, unless we are talking about matters of national security.

Opponents of this idea have said that ministers and civil servants will be reluctant to be open. I would say those people, fine, start looking for another job. You have abused our trust too much and for too long. It is our money and we have a right to see what you do with it. If you cannot be professional about it and fulfil your duty, here is your P45.

But we are embarked on this process and the reforms already undertaken by this government are redistributing and diffusing power away from the centralised state. Devolution has transferred power away from Westminster to the devolved administrations in Scotland, Wales and Northern Ireland and London and to local authorities. The Human Rights Act has brought home fundamental rights of the individual against the state, putting them at the heart of our domestic legal culture. The Freedom of Information Act has established transparency as a mechanism for empowering the individual against the state.

And empowered parts of the state (MPs) against other parts (the Government). But surely an MP should be entitled, as an elected representative, to obtain information, and shouldn’t have to resort to the law to do it?

Unfortunately it is still a struggle to get information if the Government minds you having it (example) with it even going to the extent of resorting to centuries old legislation in a highly technical way in order to get around two independent rulings.

And these reforms are working. The vibrant debate, currently energising politics in Scotland and London, for example, would have been inconceivable before these reforms. I believe historians will bracket this government’s reforms with the transformations of the seventeenth and nineteenth centuries as times of profound and invigorating change, when power was redistributed. These last ten years have been years of progress.

True in some respects but we have also been going backwards in other respects.

The work set out in the Governance of Britain programme – the Constitutional Renewal Bill, the Review of Voting Systems, and the Bill of Rights and Responsibilities, will build on these reforms and take them further.

This is contested territory. All of our constitutional institutions lay claim to a fundamental role in protecting and securing the freedoms of the citizens from whom authority and legitimacy derive in a democracy, which is the most authoritative and legitimate form of governance we have yet been able to devise. And all of these institutions lay claim to a role in balancing the exercise of power by the others.

But not a particularly good claim, in the case of Parliament forming a Government, where you get an elective dictatorship. I think we need a huge rethink of the whole thing, but will turkeys vote for Christmas?

Parliamentary sovereignty resides at the heart of our constitution. And Parliament, rightly, claims legitimacy to exercise power on behalf of the people who elect it,

Only 61% of the population turned out at the last election, so presumably he means also that there is no-one exercising power on behalf of the other 39%. Indeed, to be more accurate, in our first past the post system many of the 61% have no representative because they didn’t vote for the candidate who became MP but another candidate.

making laws for the courts to apply, and holding the executive to account, and, indeed, providing authority for the executive to govern.

The executive, the state, claims to deliver effective government for the citizen, without which lies anarchy, a condition where the powerful prevail and the vulnerable succumb.

Yes, it is the executive’s duty to execute the law (note, not invent new laws).

And the courts, interpreting and applying the law of the land, rightly, claim the ability to review actions by the state to ensure that it acts not arbitrarily, abusing power, but according to the rule of law which ensures the equal protection of all.

Each of these claims is contested once they stray beyond agreed limits.

The dangers of government praying executive efficacy in aid of the arbitrary exercise of power are well documented.

Government dominance of the House of Commons has created concerns about what Lord Hailsham famously called an elective dictatorship, with the reduction of the power of the legislature to restrain the executive challenging the legitimacy of the doctrine of parliamentary sovereignty.

Some eminent jurists have even suggested that the doctrine should not apply if government sought to undermine the democratic principles which confer legitimacy on it and that in what Lord Steyn has called ‘such exceptional cases’ ‘the rule of law may trump parliamentary supremacy’.

Lord Steyn said, “For my part the dicta in Jackson [a challenge to the validity of the Hunting Act 2004] are likely to prevail if the government tried to tamper with the fundamental principles of our constitutional democracy, such as 5 year Parliaments, the role of the ordinary courts, the rule of law, and other such fundamentals. In such exceptional cases the rule of law may trump parliamentary supremacy. ”

But, equally the rule of law only applies within accepted political norms. Authoritarian dictatorships might still operate within what, it might be argued, was the rule of law, at least in the formal sense of the phrase. To secure its legitimacy, the law needs to operate according to the underlying values of the society within which it applies. As Lord Bingham has argued ‘democracy lies at the heart of the concept of the rule of law’ – because the citizen should ‘have a say in the laws by which he is bound’.

But the point is that the judiciary won’t feel obliged to uphold a law if it infringes on fundamental principles. See my reference to the Ouster Clause later on in this article.

And the ability of the courts to restrain parliament is itself fettered by the position of the judiciary in our constitutional system. The very independence of the judiciary which secures its integrity also shapes boundaries on its power. In the resonant words of Lord Bingham, ‘The British people have not repelled the extraneous power of the papacy in spiritual matters and the pretensions of royal power in temporal in order to subject themselves to the unchallengeable rulings of unelected judges.’

Quite, that’s why judges can’t strike down Acts of Parliament (but can strike down secondary legislation, as created by the Government without Parliament’s approval, in some circumstances). But let’s be clear, not all rulings are unchallengeable, we can challenge them all the way up the court heirarchy, and also I think we need mechanisms independent from ‘the mob’, mechanisms that can challenge and stand against public opinion, guarding our freedoms against inevitable shortsightedness.

I have been thinking recently about whether democracy or freedom should be our objective, because I do not think they are the same. Indeed in a modern democracy we seem to need undemocratic, or unelected elements, such as the House of Lords, and the judiciary, in order to protect fundamental principles from ourselves.

Such contest is inevitable – and healthy. Healthy constitutions evolve and they evolve most successfully through debate and deliberation. Only in a world, yet to exist, where governments always governed benignly, where parliaments always legislated wisely and freely on behalf of all citizens and the courts always dispensed justice that was universally accepted, would this not be the case.

But this does not mean we can be complacent. Vernon Bogdanor, for example has argued that, in our own times, a broader definition of the rule of law means recognition of those basic human rights which ought to be acknowledged in any liberal society and ‘in this sense of the term, there can of course be a conflict between parliamentary sovereignty and the rule of law’.

That is what senior judges, for example Lords Steyn, Bingham, Hope, and Baroness Hale, argue too.

The likelihood of such conflicts leading to any constitutional crisis in the foreseeable future is remote.

At this point it is well worth recalling the so-called Ouster Clause of the then Asylum and Immigration Bill (see also), which almost did provoke a constitutional crisis, avoided because Michael Wills’ colleagues in Government eventually backed down. So no, the likelihood isn’t remote at all.

Nevertheless we need to assure ourselves constantly that there are effective mechanisms in place for managing the inevitable tensions in our constitutional arrangements.

Our constitution is not validated by how far it measures up to an abstract system of ideals. It’s rather an organism which derives its legitimacy from the way it has evolved over time, tested by event and circumstance, meeting the needs and aspirations of the people it serves, deriving from an organic mix of common law and statute.

Because of its fundamental importance to our society, in approaching constitutional change, caution is a virtue. Historically, constitutional change in this country has been the work of the physician, healing what needed to be healed, rather than the engineer, drawing up blueprints for new models.

Some argue that the process of change, including, for example what they see as increasing limits on the ability of Parliament to scrutinise government and hold it adequately to account, and the entrenchment of fundamental rights which restrain parliamentary sovereignty, means that the time has come to resolve these incipient tensions through fully codifying our constitutional arrangements.

As the Prime Minister and the Lord Chancellor have signalled, it follows from an organic and evolutionary view of constitutional development that we should not rule out progress to a fundamentally different set of constitutional arrangements – embodied in a fully written, codified constitution. But such a fundamental change could – and should – only ever take place on the basis of a settled consensus. And such a consensus will inevitably only emerge over time.

Nor is it the case that such codification would necessarily resolve constitutional tension. A glance at the history of the United States Supreme Court over the last fifty years suggests otherwise. Indeed, it might suggest that such codification could turn difficult and contentious social issues into constitutional issues, constitutionalising them in a way that does not necessarily encourage harmonious resolution, whereas a more fluid, parliamentary, process might do so.

And, as Vernon Bogdanor has pointed out, the existence of a Bill of Rights in the United States did not prevent the continuation of slavery until the Civil War and segregation and discrimination until the latter part of the twentieth century.

More immediately, the Governance of Britain programme is exploring how best to enhance the legitimacy of our constitutional arrangements with the people they serve. This is key to managing tensions between the branches of our constitution. The more representative Parliament is, the greater its power to hold the executive to account. The more the state refrains from the arbitrary exercise of power, the less the courts will feel an obligation to restrain it.

Well, quite! One of the problems here, perhaps the main problem, is that some agents of the state don’t refrain from the arbitrary exercise of power.

Worries about the current condition of the constitution and popular discontents have been well rehearsed. The powers of the state are increasing, it’s argued. Parliament, it’s claimed, is too unrepresentative and unresponsive to those who elect it. The courts are remote and, it is felt by those who read the headlines instead of the facts, the rights they protect are only for others.

Something not helped by certain MPs and Government Ministers. Indeed the Joint Committee of Human Rights criticised the Government for using the Human Rights Act as a “convenient scapegoat for unrelated administrative failings within Government”, and further that the Government was responsible for creating an erroneous impression, and “when those assertions were demonstrated to be unfounded, there was no acknowledgment of the error, or withdrawal of the comment, or any other attempt to inform the public of the mistake”.

You know, it is really quite annoying when Ministers say such things. An old adage springs to mind: “thou hypocrite, first cast out the beam out of thine own eye; and then shalt thou see clearly to cast out the mote out of thy brother’s eye; or, “people in glass houses should not throw stones”.

The Governance of Britain programme sets out a process to address these concerns.

I must confess I’ve never read it. I wonder whether or not it requires Ministers to resign when they deliberately create an erroneous and dangerous impression.

The Constitutional Renewal Bill, to be published shortly, surrenders to Parliament a range of powers currently exercised by the executive, or limits them.

Well, “making it a statutory requirement that treaties are laid in both Houses before ratification”, and “regarding the deployment of troops abroad, the executive should seek the approval of the elected
representatives in the House of Commons”.

The role of the courts in protecting the individual against the misuse of state power is fundamental to our constitutional arrangements. As Anthony Lester has compellingly demonstrated, this does not depend on the introduction of the Human Rights Act alone. For half a century, the British judiciary have applied British common law principles, in ways that have not usurped the proper powers of Parliament, to revive administrative law, extending the protection of natural justice and fairness, principles that define the best about our country, to the individual against state power.

And yet this has not been universally recognised – or appreciated. We need to address this. In practice, these protections are not as accessible as they should be. Too often, the remedies of administrative law against the state remain available only to the powerful who can afford litigation – whether the wealthy individual or the well-resourced non-governmental organisation.

More generally, the Green Paper we will be publishing shortly on a new Bill of Rights and Responsibilities will set out fundamental principles which shape our democracy and should inform the decisions of government, parliament and the courts. Alongside this will be a clear articulation of the responsibilities we owe to each other, that are intertwined with the rights we enjoy. As Lord Hope has said: ‘Respect for the rights of others is the price we must all pay for the rights and freedoms it guarantees.’

Yes, let’s not pervert Thomas Paine.

This needs to be more widely recognised if we are to secure popular acceptance of the importance of these rights in our constitutional arrangements.

This Bill will set out the rights we enjoy and the responsibilities we owe as members of society. We are bringing it forward, not necessarily to add new rights, but above all to ensure that the system works better to protect the individual against the powerful – and that it is recognised as doing so. As citizens become more aware of their rights, so governments become more sensitive to them. In a democracy, education can be as important as litigation in protecting the individual. The greater the cultural change, the less need there is for litigation to secure it. In codifying the rights we enjoy and the responsibilities we owe, this Bill has a crucial role to play. It will express the most fundamental values we share as a nation and help bind us together, enabling the individual to flourish within a common framework of dignity, equality and liberty and mutual respect.

Representative democracy remains the cornerstone of our constitution and no-one is seriously suggesting any alternative. Fortunately. For this government, representative democracy – and therefore Parliament – must remain at the heart of the governance of this country. It’s the best way we have yet found to deliver fair and effective government. It allows for the fairest distribution of power among all citizens and provides for the fair treatment of minorities. It gives government the ability to tackle complex issues continually as they arise and it does give space for effective deliberation for government to refine and improve policy – so decisions aren’t taken in haste and repented at leisure.

But we must recognise that the demands on the system are evolving. People are becoming disengaged from the democratic process – and in different ways. While some see democratic politics as irrelevant to their lives, others wish to become more involved, exercising power between elections as well as at them and they’re frustrated by the lack of opportunity for them to do so.

I forget who first said it, but one of Tony Blair’s achievements was to cut the number of Labour party members by half within ten years. Now, that’s some going.

Hayden Phillips’ review of the funding for political parties found that “Trust in politicians at a national level and trust in political parties are both low, and have been subject to a long-term decline. Polling research indicates that people feel distant from parties, and they feel that parties are only interested in them at election times.”

The Power Inquiry found that people are disengaging from mainstream politics because they “do not feel that the processes of formal democracy offer them enough influence over political decisions – this includes party members who feel they have no say in policy-making and are increasingly disaffected; the main political parties are widely perceived to be too similar and lacking in principle;the electoral system is widely perceived as leading to unequal and wasted votes; political parties and elections require citizens to commit to too broad a range of policies; many people feel they lack information or knowledge about formal politics; and, voting procedures are regarded by some as inconvenient and unattractive.”

The Electoral Commission concluded that “our research found a strong sense of anticlimax with both voters and non-voters recalling being uninspired by the state of politics in 2005, by the four-week campaign and by the choices on offer. On the whole, people recounted little excitement, few genuine incidences of interaction between people and politicians, and were critical of the negative tone of the campaign.”

Furthermore, that “The available evidence also suggests that people were as receptive to the election as they had been in the past – opinion polling showed people as interested in politics in April 2005 as in 1973 – and our annual audits of political engagement have challenged the notion that the UK public is politically apathetic.”

I don’t recall any authoritative source claiming that “democratic politics” seem irrelevant to people.

Does Wills mention these issues of trust and principle? Of course not. But in ignoring these issues he continues to fuel disengagement.

We must be careful how we respond to this challenge. Alternative models of democracy are available. Broadband technology could easily create an electronic infrastructure for a system of plebiscitary democracy.

Passionate advocates of measures of direct democracy, including plebiscites, can sometimes sound as if passing contentious issues directly to the people for decision is an unarguable good. It isn’t. While they can have a place in our constitutional arrangements, they can also be a recipe for passing control of our democracy to the wealthy and powerful. Plebiscites do not offer adequate opportunity for deliberation of complex issues. They do not offer the opportunity to weigh competing policy objectives against each other. They do offer the wealthy and powerful the opportunity to manipulate the outcome. These lessons are all there to be learnt from the authoritarian regimes of twentieth century Europe.

However, we believe there are ways in which our historic system of representative democracy can be augmented without opening the door to plebiscitary democracy. To that end we are introducing new processes of democratic engagement. The British Statement of Values, for example, will emerge from a deliberative process, culminating in a citizens’ summit.

This is an innovative process, which we intend to develop further, in ways we will announce shortly. We believe that new methods of engagement between government and people, including deliberative mechanisms, will support our system of representative democracy by encouraging involvement, reassuring people about the range of ways in which their voice can be heard and, over time, as the experience of deliberative processes ripples out through society, it will prove to be a powerful educative process about the complex demands of democratic decision-taking which in turn, should, should, lead to a greater understanding of the value of parliamentary democracy and a belief in its virtues.

Addressing these issues will clearly be testing for all of us. And I welcome the work that the Constitutional Unit is doing to explore the dimensions of the challenge.

But we believe that any mechanisms to re-engage people with democratic processes and regenerate trust will only succeed if they fulfill five conditions.

* First, they must register with the public. To achieve this, they must be regular and pervasive.
* Second, they must be credible – people must believe they matter. To achieve this, either there must be sustained feedback to participants in deliberative engagement exercises, or they must devolve the decision from government, e.g. to a citizens’ summit.
* Third, they must be open and transparent – participants must be aware in advance of the degree of influence they might have. There must be a shared understanding of when and how these mechanisms will be used. Government must not embark on engagement for the sake of it.
* Fourth, they must be systemic – otherwise people will regard them as cynical window-dressing gimmicks by politicians. They represent a permanent change to the policy development process.
* And finally, they must be consistent with representative democracy – new mechanisms should feed into Parliamentary consideration of issues.

We will soon be publishing a discussion paper setting out in more detail how we believe these objectives can be met.

By now you’ll have noticed that I’ve strayed beyond the remit I was given for this lecture. About the debate on the Bill of Rights and Responsibilities. It wasn’t an accident. It was wilful. Not simply because our plans for this Bill are going to be announced shortly and I can’t pre-empt them here today. But also because the debate that will shortly begin on the Bill of Rights and Responsibilities can only make sense in the context of the wider debate about power in our society. Where it resides. Where it should reside. How it should be distributed. How we should decide how it should be distributed. Who should decide how it should be distributed.

I think it’s clear where the Government believes power should reside, and who should decide how it should be distributed, don’t you?

You all – and the British people – will shortly be given the opportunity to contribute to these decisions. Please seize it.