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Policy and public: Letting the people in

Lord Norton of Louth*

Abstract

Members of parliament are returned as representatives of the people that elected them. Party shapes members’ behaviour but the party programme normally gives legitimacy, under the theory of the mandate, to the principle of legislative measures. The members may have little knowledge of what their electors think of particular legislative provisions. There are various obstacles, at both the individual (MP) and collective (party, parliament) level, that prevent members being able to know what electors think. This article identifies the obstacles and also discusses ways in which they can be reduced. Reducing the barrier between parliamentarians and their electors is important to the health of the political system, especially at a time of declining trust in parties and government.

Public policy is normally ‘made’ – that is, drawn together as coherent measures – by government and then debated and approved by the legislature, a body chosen by the people and, as a representative body, acting in their interests. The measures may and often do give effect to promises embodied in a winning party’s election manifesto (In the UK, for example, successive governments have had a good record of implementing manifesto promises. See Rose, 1984: 65). Political parties seek election to public office on the basis of particular published programmes and, under the doctrine of the mandate, are deemed to have the legitimacy, once in office, to implement those programmes. Election provides the popular legitimacy and the legislature confers the formal legitimacy, without which a measure is not the law, enforceable by the courts and other state agencies.

The legislature is thus a crucial body in a representative democracy. It is not the body that makes law (contrary to some dictionary definitions), but rather the body that gives assent to law (Norton, 1990: 1). Prior to giving assent, it may subject measures brought forward by the government to sustained scrutiny. It acts as a buckle, an essential link, between people and government in between elections. As Birch (1964: 236) observed in his seminal work, Representative and Responsible Government, ‘the representative system provides a permanent channel for the communication of opinions and complaints from the people to their government. It is by no means the only channel and only in some circumstances is it the most effective, but there can be no doubt of its importance.’ To what extent, though, does the legislature act as an effective channel? Do members of the public have much of an opportunity to be heard in respect of the detail of legislation or, indeed, on the principle of a bill that was not envisaged in the manifesto of the winning party or parties? To what extent is policy approval by a legislature informed by the preferences of the public? Here, I take members of the public as precisely that: that is, as individuals and not as organised and enduring entities in the form of interest groups. Some (possibly even most) members of the public may have a view on a particular provision or an entire measure, some (most likely a minority) may have an informed or expert view, but how can they make their views known when the provision is being debated by the legislature?

CLOGGED ROUTES?ToC

It is possible to identify three routes by which members of the public may have some input into parliamentary deliberations on measures of public policy: at the individual level (MPs) and at the collective level of political parties and parliament. However, in each case, one can identify obstacles that prevent effective public input into the process.

Members of Parliament

Contact with members of the public is especially important in constituency-based systems, where constituents can identify ‘their’ member (or members) of the legislature. In such systems, members may devote considerable resources to achieving and maintaining contact with constituents. This is noticeably so in the case of the United States, where the party label may not be sufficient to determine electoral success, as well in West European countries such as the United Kingdom, Ireland and Germany; it is also a feature of Belgium, not least in respect of the senate, even though the constituency of a Senator constitutes half the country (Norton, 2002: 179). There is evidence also that some countries have seen a notable increase in the demands made by constituents (Norton, 2002:180). For many parliamentarians, the demands made by constituents may be time-consuming, varied in scope (cf. Norton, 1994: 705-20) but also rewarding in terms of job satisfaction. As one study of British MPs concluded, ‘A major benefit derived from constituency casework is the enormous satisfaction that it gives to the majority of MPs’ (Downs, 1985: 75). One survey of British MPs found that just over 56 per cent of those questioned classed ‘solving constituents’ problems’ as very important and a further 24 per cent as quite important; only two out of 179 respondents classed it as not important at all (Hansard Society, 2001: 130).

Constituency casework, however, relates primarily to achieving a redress of specific grievances, or ensuring that a constituent gets an explanation of why some particular action has been taken. The activity undertaken by the member is specific to the constituent, and therefore relates to the interests of those constituents who make contact for that purpose. Some constituents may get in touch in order to express a view on a particular matter of public policy. If raising some specific aspect of policy, especially one on which the constituent may have some expert knowledge, the member may pursue the matter within the legislature. In such cases, it can be argued that some members of the public have had some input into the deliberation on a measure of public policy. However, such contact is undertaken by a minority.

Surveys in the UK show usually between ten and fifteen per cent of those questioned have made contact with their MP. The Audit of Political Engagement 6: The 2009 Report found that 9 per cent of respondents had contacted an MP in the previous two years, compared to 12 per cent who had contacted a local councillor. Though this represents a substantial number of people, it still means that eight or nine out of every ten members of the public have not sought to have any input into the political process, at least not through their elected members of the legislature. If we take it that a substantial proportion of those contacting their elected representatives do so to raise matters specific to them (the constituency casework that is time-consuming), then the proportion seeking to express a view on public policy is even smaller.

There are two obvious obstacles to contact becoming a pervasive feature, with members of the public generally having some input into the process. The first obstacle is one of awareness. To be able to have an input, members of the public have to be aware of what is being considered. A measure may be going through the legislature. The members are aware of this, but to what extent are those that they represent aware of it? A highly contentious measure may attract media interest, but such measures tend to be in the minority. What coverage there is may address a particular aspect and not the whole measure of the detail of the bill. In many cases, it is a demanding exercise for organised interests to monitor what is happening within the legislature (and indeed various political consultancies offer monitoring services for clients so that they can be informed of what is happening), so there is relatively little scope for unorganised interests – members of the public – to follow what is going on.

The legislature may seek to make information publicly available in terms of legislation and what stage has been reached by the legislature in its consideration of that legislation. We shall consider some of the problems associated with this in due course. At the level of the MP, there is an obvious resource problem. Though members of the House and Senate in the USA Congress are well resourced, both individually and collectively, they are the exception. Members of other legislatures have limited resources in order to cope with the demands made of them. In constituency-based systems, they are likely to be in reactive rather than proactive mode, heavily engaged on constituency casework and with little opportunity regularly to draw attention of constituents to legislation being considered by Parliament. There are limited mechanisms for so doing (newsletters, local media articles, websites) and there may also be limited inclination: if members specialise in particular policy sectors, they are likely to give most attention to measures falling within their areas of interest.

The second obstacle is the limited mode of expression. Even if members of the public are aware, how are they to make their voices heard? Though it is not uncommon for parliamentarians to express a view on behalf of their constituents, there is no mechanism by which they can know, on any regular basis, what the collective view is of their constituents. They may hear from constituents with a particular knowledge of the subject, but in terms of the view prevailing within the constituency, there is an obvious problem. Constituents may decide to write to or e-mail their elected representative, but if most do not (and to date we know most do not) then the MPs have to go on the basis of the minority who have made contact. How is an MP to know how representative of the wider constituency a post-bag of, say, twenty or thirty letters is? How is the member to know whether the letters that are received are the consequence of spontaneous action by the individuals concerned or the result of prompting by an interest group?

A seminal, though now dated, study by Hedlund and Friesema (1972: 410) found that Iowa state legislators sometimes had difficulty identifying constituents’ opinions on issues on which referendums were subsequently held. Somewhat ironically, those legislators that saw their roles as delegates were less accurate in assessing constituents’ opinions that those who saw their roles as representatives. They also found the state legislators better able to predict opinions on major rather than less major issues. However, as they noted, ‘political representatives deal with so many issues which intervene in the lives of the people that their relative inability to perceive constituent opinion on issues like these reported here would seem to be a most serious limitation.’ One way now for parliamentarians to elicit the views of electors is through the use of new technology. Parliamentarians tend increasingly to have their own websites, but in practice these have not lived up to the optimistic expectations that some commentators had of them. They are more likely to be used to disseminate information, in effect mirroring past practices in terms of delivering leaflets and penning newspaper articles, rather than to engage in interactive dialogue with constituents. As one study of four European parliaments concluded, ‘in general, European parliamentarians are not making use of the most innovative features of the Internet, particularly its possibilities for interactivity and networking. They consider their websites as something that “has to be had”, using them mainly as a device to offer information about themselves and less as a mechanism through which to communicate with or get feedback from their constituents’ (Vicente-Merion, 2007: 454). Testing of different models in the context of the UK found that the delegate and representative models had little saliency: practice tended to bear out the party model, reinforcing existing modes of communication. ‘There is little or no evidence of MPs using the new technology to garner the views of their constituents and to do so systematically and in such a way as to influence their behaviour’ (Norton, 2007: 364). Though parliamentarians may speak in the name of their constituents on particular issues, they appear not to take steps to know what their constituents actually think.

Political parties

Political parties serve also as a means through which members of the public may seek to make their views known when a measure is being considered by the legislature. This is especially so in countries with no concept of constituency representation. In Portugal, for example, members of the parliament are constitutionally barred from voting in defence of constituency interests. Under Article 152 of the Portuguese Constitution, MPs are not representatives of the large constituencies that elect them but rather representatives of the country as a whole. MPs have little contact with constituents. ‘As several analysts have observed, the main links established are the one between parliament and party and the one between citizens and party, that is, the party is the predominant mediator in the relationship of parliament to citizen’ (Leston-Bandeira, 2002: 131). The party is the route through which members of the public seek to make their voices heard. A similar point could be made, for example, about Brazil, where as Barry Ames notes, issue-based links are rare because ‘the ties between voters and deputies are so weak and because deputies have little idea of what constituents think’ (Ames, 2002: 211). Political parties are essential mechanisms for aggregating opinions and translating the wishes of electors into public policy. However, in terms of structure, they are geared principally to electoral campaigning and generating and implementing policy proposals. Some may have mechanisms of intra-party democracy, allowing the views of members to feed through on particular measures, but few if any have a structured means of sounding out public opinion or eliciting the views of members of the public on specific items of legislation. Concerned citizens may write to party leaders, in or outside Parliament, but there is usually no established and transparent mechanism for making representations on particular items of legislation through parties per se.

Parties themselves often lack the means of regular contact with electors, other than at election time. The decline in party memberships exacerbates the problem. If parties are increasingly lacking the resources to engage in the labour-intensive task of going from house to house (delivering leaflets, inviting comments, listening to electors), then they become more reliant on new technology for making contact. The problem here is similar to that with Members of Parliament. They have not necessarily exploited the new technology for the purposes of eliciting the views of members of the public. Though political parties generally have websites, they are not notable for their interactivity. One study of over 200 websites of parties in EU countries found notable variation between them, with the larger and better-resourced parties having the more interactive sites, but that increasingly parties use them to disseminate information and also to direct readers to other more interactive and user-oriented sites (Vicente-Merino, unpublished thesis: 232). Parties may be reluctant to use their official websites for interaction with members of the public for fear of what may be put online and because of the resource implications. As a result, they prefer to leave it to others to engage, which may therefore have the consequence that the parties themselves are not aware of the views of members of the public on particular items of public policy being considered by the legislature.

Parliaments

Legislatures themselves may have a role to play, either generally through their central authorities or through agencies such as committees. As institutions, legislatures often do not have central authorities in positions to be proactive in seeking engagement with the public. They may have officials or bodies responsible for management and for maintaining the external face of the body through educational programmes and a website, but these tend to be neutral with little scope for inviting comments on measures before the legislature. In some cases, parliament websites may be informative as to the business of the chamber(s), though the nature of parliament language, and sometimes the complexity of the legislative process, may make it difficult for members of the public to understand what is happening and, if concerned by a measure, what to do about it. The European Parliament (EP) website (http://www.europarl.europa.eu/) for example, is extremely data-rich, with a great deal of information about what is happening in the EP and its committees, but with little information on how members of the public can have some input into the legislative process. It has a Correspondence with Citizens Unit, though this appears principally geared to supplying information rather than processing input from citizens. It does note, though, that much input takes the form of petitions and requests directed to individual members. Most of the website is given over to dissemination of information. Though immensely valuable – interested citizens can find out what is happening in the plenary and in committees – it is essentially one-way communication. This appears to be typical of parliament websites.

In many legislatures, committees are empowered to take evidence. They can call witnesses and receive written evidence. This provides for input from people outside the legislature and is usually on the public record. In the case of the United Kingdom, for example, transcripts of evidence-taking sessions are published (with uncorrected transcripts placed on the Parliament website shortly after taking place) as is the written evidence submitted. The evidence may be so voluminous as to justify being published a separate volume to the committee’s report. However, there are problems in letting members of the public know what committees are investigating and how they can make their own views known. It tends to be what are classed as the ‘usual suspects’ who give evidence: that is, interest groups who monitor what committees are doing and which are in a position to offer evidence, often at short notice. The UK House of Commons recently introduced public bill committees in place of standing committees for taking the committee stage of bills. Public bill committees are empowered in most cases, unlike standing committees, to take evidence. This has proved a welcome development, enabling bodies outside Parliament to get their views on the record and be questioned by committee members. However, the time constraints are such that it is really only the usual suspects – established interest groups – who are able to respond to requests to give evidence (Levy, 2009: pp. 35-39). Even some established groups have not been able to contribute because they have not known how to do so or because they have not had the time. ‘Anne Pinney of Barnardo’s explained that her organisation had declined to give expert evidence to a recent bill having only been told two days before they were scheduled to appear. “The timescale was impossible”, she said’ (Levy, 2009: 36). If organised interests, often with resources including dedicated parliamentary affairs managers, are not able to get evidence in to a committee, the chances of ordinary members of the public being able to do so are extremely limited.

One structured means of members of the public having an input into parliamentary deliberations is through the use of petitions. Any citizen of the EU, or resident of a Member State, may individually or in association with others submit a petition to the European Parliament on a subject which comes within the EU’s field of activity. It is common for parliaments to have such provisions and to have petitions committees to consider submissions made. In some cases, petitions committees are constitutionally mandated. Article 17 of the German Basic Law grants every person in the Federal Republic the right to address petitions to the relevant authorities and to parliamentary chambers at federal and state level. In Portugal, petitioning is seen as the main way of enabling citizens’ views to be expressed to the parliament. However, in practice parliaments have problems coping with petitions. In Germany, the sheer number submitted tends to overwhelm the system. ‘Given its modest resources (especially time), the Committee cannot follow up all complaints and petitions’ (Saalfeld, 2002: 51). Time is also a factor in Portugal. ‘The main criticisms of this instrument are its ineffectiveness and the long time span between the presentation of a petition and its consideration by parliament. In any case, it soon becomes clear that the main petitioner is not the citizen, but rather organized groups, such as trade unions’ (Leston-Bandeira, 2002: 140). Though petitioning may be seen as a useful means by which citizens can have an input into the parliamentary process – there is pressure in the UK Parliament to create a petitions committee – the experience to date is that parliaments have not been able to devote adequate resources to the task of assessing them and enabling them to contribute in a timely manner to legislative debate. Service on petitions committees appears not to be the most popular activity among parliamentarians. This reflects the fact that such committees do not have high profiles politically.

In short, there are problems at the individual and collective level in enabling members of the public to be heard when a particular measure is being considered by the legislature. Some members of the public may make representations to members of parliament and public opinion polls may alert members to popular feeling on a particular issue. Interest group activity may reflect the concerns of the public (but, then again, it may not). It is difficult for parliamentarians to know whether those who do make contact are typical of the wider public or simply a tiny minority with a particular axe to grind. There are clearly problems in enabling the public to be heard when a parliament is discussing a particular measure of public policy. If particular provisions are not the subject of conflict between parties, then the public may not be aware of them, at least not until they are enacted. There is, in short, a democratic deficit in the relationship between parliament and public in the deliberation of legislative provisions.

INCOMPLETE SOLUTIONSToC

There is no obvious way in which the obstacles we have identified can be overcome completely. As Hedlund and Friesema (1972: pp. 410-411) noted, ‘The option may be to confirm and perpetuate an essentially elitist decision-making system which takes account of public opinion only in a substantially distorted manner.’ Though it may be impossible to get rid of distortions, it may nonetheless be possible to reduce them.

At the level of the individual MP, there may be a case for devoting more time to trying to assess what constituents think of public policy and less to constituency casework. MPs have responsibility to scrutinise legislative measures brought forward by government: only they have the formal legitimacy to do so – and if they fail in the task the result can be bad legislation – whereas there are other grievance-chasing agencies that can pursue constituents’ grievances (and sometimes more quickly and with greater knowledge of the subject than the MP). As Saalfeld (2002: 61) has noted, one reason for relatively little increase in constituency casework in Germany may be because of the use made already of other grievance-chasing agencies. However, reducing casework may be problematic, partly for political reasons – MPs are attached to it and believe that it bolsters their position in the constituency (see, for example, Norton and Wood, 1993) and also practical, in that constituency casework may contribute to oversight of the executive (see Johannes, 1979 and Norton, 1982). At the collective level, partial solutions may be found through parliaments. The change at the institutional level may be modest but with significant benefits. Parliament websites, for example, could move away from an almost exclusive emphasis on what the legislature is doing to incorporating prominently information of what members of the public may do to have an input into the parliamentary process. In some cases, as with the website of the Australian Parliament (http://www.aph.gov.au/), his just means drawing out material already on the website and making it more prominent. The committee page (http://www.aph.gov.au/committee/index.htm) of the Australian site includes the statement: ‘Public input is also important. Through its committees Parliament is able to be better informed of community problems and attitudes. Committees provide a public forum for the presentation of the various views of individual citizens and interest groups.’

There are also links to pages giving details of how to make a submission. It is a relatively straightforward exercise to give this even greater prominence. In the case of other parliaments, it may require inputting new material, though the exercise is not likely to incur significant financial costs, though it may reap significant political benefits.

However, there are other mechanisms that may be employed, not least by committees. These entail a more proactive approach to soliciting the views of the general public or of informed publics. One of these has been employed by some committees in the UK Parliament: that is the use of online consultations. The Parliamentary Office of Science and Technology employed an online consultation on flood management and the all-party group on domestic violence employed one as part of its study of domestic violence. In 2004, Professor Stephen Coleman was able to tell the Modernisation Committee of the House of Commons (2004: pp. 20-21): ‘On-line consultations are something that you [Parliament] have in fact pioneered, and have done better than any other parliament in the world. There is quite a lot of data suggesting that these consultations have had an effect on the fairly small minority of people who have engaged in them – because they have been deliberative, because they have been expansive over a period of a month, and because they have taken people seriously.’

Since then, the use of online consultation has been expanded, a number being run by the educational body, the Hansard Society, on behalf of Parliament (http://www.tellparliament.net/) and more recently by Parliament itself. Topics covered have included hate crime, human reproductive technologies, conditions of prison officers, traditional retail markets, universities’ admission processes , UK engineering, post offices, armed forces recruitment and retention, criminal justice, forced marriage, the role of local government in the drive to reduce carbon emissions, as well as issues being addressed by a Speaker’s Conference on Parliamentary Representation (including the representation in Parliament of women, ethnic minorities, disabled people, and lesbian, gay and transgendered people). Online consultations have also been held on connecting both Houses with the public. As the TellParliament website noted, of those who contributed to the consultation on diabetes, 78 per cent had never contacted an MP before.

Online consultations offer the opportunity for interested individuals and groups to contribute, if necessary in a private space or anonymously, and to do so from their own homes at a time of their own convenience. Such interaction can be valuable to the committees involved, providing them with input from concerned and sometimes highly knowledgeable individuals. The value of such exercises can be linked to the foregoing recommendation: Parliaments can play a role in prominently displaying information about consultations. However, a higher level of effectiveness requires some commitment of resources if committees are to be proactive in identifying particular targets for details of their consultations. It may be easier, for instance, to find means of reaching prison officers than it is women (or men) who have been subject to domestic violence.

Such consultations can be extremely valuable, both for enhancing parliamentary scrutiny and addressing the democratic deficit, albeit modestly. However, such consultations reach only small and sometimes discrete publics. What about public opinion generally on particular measures? As the House of Lords Select Committee on the Constitution noted (2004: 51) in its 2004 report on Parliament and the Legislative Process, one means for committees to assess public opinion is through the commissioning of opinion polls. As one witness told the committee, ‘It does not have to be terribly expensive although it is not a cheap way of doing things. Done properly by experts, it is a useful way of identifying the public’s views on certain issues and something which we do extremely well’. Such polls, as the committee recorded, do not have to bind committees, but rather act as important intelligence. The power to commission polls, it noted, could form but one of the tools available to committees in their inquiries. It is a tool that is not appropriate necessarily to be used on a frequent or indiscriminate basis, but it is one that can enhance considerably the capacity of parliamentarians to know the views of the public on particular measures, or particular provisions of bills, and could, for example, complement the use of online consultations. Online consultations can enable a committee to engage with an informed public and opinion polls can enable it to know the views of the wider public.

There are also techniques that some committees utilise in a number of Parliaments and which may be emulated by others, including ensuring that committees are not necessarily confined to the physical environment of the parliament. Having committees operate on a peripatetic basis enables people to see a legislative body at work, who might not otherwise have the opportunity to do so, as well as creating the potential for the committee to take evidence from people who may not otherwise be able to give, or may not have considered giving, evidence.

It is thus possible to enhance contact between parliaments and the public, enabling parliamentarians to be better informed about the stance taken by members of the public on particular legislative provisions. The contact will never be perfect. Even if parliaments invested in the frequent use of opinion polls, it is unlikely that they could or would employ them in respect of every legislative measure that they are considering. A national opinion poll may not necessarily capture the views of the constituents of a particular MP. However, there are techniques that can be employed that will at least reduce the obstacles that stand between parliaments and public, and do so at a time when public confidence in political systems is not high.

DOES IT MATTER?ToC

Discussion of what parliaments can do to reduce the distance between them and the public raises the question of whether doing so actually matters. Should not the principal conduit for translating popular wishes into public policy be political parties? Parties help aggregate opinion. Without them, citizens would be largely atomistic and insignificant political units. Parties are essential to the health of a democracy. However, at a time of declining popular trust in governments and parties, there is a role for parliaments to play in enhancing the link between the public and the political process. Though party will, and must, continue to shape parliamentary behaviour, it is important that members of the public are aware that they can at least have a voice when a measure is being considered. The crucial aspect is opportunity. Most members of the public are unlikely to make use of it – the UK Audit of Political Engagement 6 (Hansard, 2009: 5) found that 55 per cent of those questioned did not wish to be involved in decision-making in the country as a whole. However, that leaves a sizeable proportion with an interest. The same audit also identified a large proportion who felt excluded from the process. ‘The most commonly cited reasons for not feeling influential in decision-making point to a belief that politicians and the political system overlook the public’s view’ (Hansard, 2009: 4). No less than 85 per cent felt that they had ‘no influence at all’ over decision making in the country as a whole. In terms of reasons for not being influential, 29 per cent said ‘nobody listens to what I have to say’ and 20 per cent replied ‘decisions are made without talking to the people’. It is not clear that the 29 per cent had actually sought to express their views.

Enabling people to have a greater opportunity to have their say may help counter public dissatisfaction with the political system. Enabling the voice of members of the public to be heard need not necessarily prevent parliamentarians from acting as representatives, as opposed to delegates. The voice of constituents is something to be taken into account, not necessarily something that determines the behaviour of the MP. If constituents are dissatisfied, they can hold the MP accountable at the next election. The important point is that at least their voices have been heard. Knowing that, or at least knowing the opportunity exists to make their voices heard, can arguably help bolster confidence in the political process. Legislatures are crucial bodies; with a little more effort, they may be able to make themselves even more crucial.

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