Cutting through the Brexit cacophony

In April 2016 — before the Brexit referendum — I posted an article on Open Democracy calling for a deliberative alternative based around a citizen’s jury. The UCL Constitution Unit has now adopted a similar approach to deciding what form Brexit should take, as reported by James Blitz in the Financial Times:

The Constitution Unit at University College London has tried to fill this gap. Together with the think-tank UK in a Changing Europe, it recently brought together a “Citizens Assembly” of 50 voters. The group reflected a careful cross section of how people voted at the referendum (25 voted leave, 22 voted remain and three did not vote). The group spent two weekends listening to, and taking part in, a balanced debate on Brexit with the involvement of political speakers, academics and other experts. They were then asked to decide how Brexit should proceed in four votes on specific aspects of the negotiation.

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Kofi Annan endorses sortition

In a speech titled “The Crisis of Democracy” given to the 2017 Athens Democracy Forum, former Secretary-General of the United Nations Kofi Annan has endorsed the use of sortition as a tool for “mak[ing] our democracies more inclusive”. Tucked between two other pieces of advice, to harness new technologies and management techniques in order to make our democracies more effective and to champion democracy against its enemies who are spending billions to undermine it, both in practice and through misinformation, Annan says:

[W]e need to tackle inequality, both economic and political. As I have said, increasing inequality is one of the drivers of resentment, especially since economic equality leads to political inequalities as well, as several studies have confirmed. There is a growing perception that the priorities of the extremely wealthy take precedence over the well-being of the middle class thanks to campaign contributions and lobbying. At the other end of the spectrum, the poor and minorities are, or at least feel, excluded from the political system. Governments must respond by redistributing fairly the benefits of globalisation by restricting tax avoidance and evasion schemes, and most importantly, discouraging tax havens. Fortunately, democracy is one of the only systems in which the concerns of the majority can overturn the interests of the wealthy if the majority harnesses the mechanisms at their disposal. But this demands more participation, not less.

This means that we need to make our democracies more inclusive. This requires bold and innovative reforms to bring in the young, the poor and minorities into the political system. An interesting idea put forward by one of your speakers this week, Mr. Reybrouk, would be to reintroduce the ancient Greek practice of selecting parliaments by lot instead of election. In other words, parliamentarians would no longer be nominated by political parties, but chosen at random for a limited term, in the way many jury systems work. This would prevent the formation of self-serving and self-perpetuating political classes disconnected from their electorates.

‘We spent almost two years sitting on a jury’

There has been some debate on this site regarding the optimal length of service for a political jury.  On the one hand most of those chosen by lot to participate will have had very little political experience, and will need a period of induction and this has led to suggestions for a service period of up to 2 years with overlapping tenure, so that at all times there will be jurors who will have served for at least a year to help guide new inductees. On the other hand others (including myself) argue for short ad hoc juries, allotted for each legislative bill, in order to ensure ongoing representativity (i.e. to combat the risk of jurors ‘going native’).

However the discussion has always been from the perspective of the system rather than the participants who, it is assumed, will go back to their normal lives once their service period has ended. But evidence from a recent fraud trial suggests this may be difficult if the service period is for a year or more. Jurors rarely talk about their court-room experience but four out of the twelve participants in this case have revealed how difficult the transition back to civilian life has been (three of the original 15-strong allotment dropped out, suggesting negative outcomes for nearly one half of the original sequestration). One of the jurors, ‘Julie’

returned to her job in a travel agency when the case finished, but quickly found herself struggling. Julie says: “I went back and did two days training and then I went two days into the shop. I’ve never been back since. I’ve not given it up yet. “I am going through the doctor and trying to get back into it. I’m still struggling. I just felt like I could not even hold a conversation.”

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Sortition as a direct democratic system to appoint a real citizens representation, also called “citizen jury“

INTRODUCTION

According to historical sources our political system was developed AGAINST democracy (sovereignty of the people). An “Electoral Aristocracy” was installed (18 century). Nevertheless, this can be seen as a positive evolution compared with ruling by inheritance.

Later on some “democratic” elements were installed, for instance “free” or so called “democratic” elections with universal suffrage, the equality principle, freedom of speech, freedom of organisation, free press, … but some of them were weakened or eliminated afterwards.

But a “democratic element” is not yet a “democracy”. Freedom of organisation may be a “democratic element”, without it a democracy can not exists, on his own it is no democracy. This way “free elections”, to appoint a governor for instance, can be a democratic element but on his own it is by no means a democracy.
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Participation Toolkit

A book named “Participatory methods toolkit: a practitioner’s manual” was published in 2005 by the King Baudouin Foundation and the Flemish Institute for Science and Technology Assessment (viWTA).

This toolkit has a “citizens jury” part that may be of interest to us.

Page 21:

4) Participants

Recruitment

In some methods, the participants are supposed to be representative of the population at large. However, this may be unrealistic to achieve perfectly in practice. Purchasing random sampling phone numbers may prove financially unviable.

In this case, the advisory committee and project management will need to establish recruitment criteria and decide on another method, such as newspaper advertising. In newspaper recruitment, panellists are somewhat self-selected because they have to initially respond to an advertisement. In any method of recruitment an element of bias is introduced at the selection stage by the preferences of the selection committee. Recruitment is usually done three to four months prior to the first activity.
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Lysander Spooner, trial juries, and legislative juries

Lysander Spooner (1808-1887) was a prominent 19th century American legal theorist, abolitionist (abolition of slavery), and competitor with the U.S. Postal Service until they shut him down. A biography and collection of his work are here.

Spooner continues to be cited in the U.S., including for example by Justice Scalia writing for the Supreme Court majority in 2008 in District of Columbia v. Heller.

Spooner was a strong advocate of “jury nullification.” He argued that trial juries have the right and duty “to judge of the justice of the law, and to hold all laws invalid, that are, in their opinion, unjust or oppressive, and all persons guiltless in violating, or resisting the execution of, such laws.” (An Essay on the Trial by Jury, published in 1852, page 5.)

In the following passages Spooner is talking about trial juries. Although he never mentions the possibility of legislative juries, his line of reasoning is to a large extent strikingly applicable to them. By “legislative juries” I mean juries that can veto and repeal the laws the government passes, and pass laws the government does not support.[i]

Lysander Spooner (italics and bold are as in the original, block quote function not used because it may change everything quoted to italics):

“By such trials [where juries do not judge the law] the government will determine its own powers over the people, instead of the people’s determining their own liberties against the government; and it will be an entire delusion to talk, as for centuries we have done, of the trial by jury, as a ‘palladium of liberty,’ or as any protection to the people against the oppression and tyranny of the government.” (Ibid., 10.)

“The authority to judge what are the powers of the government, and what the liberties of the people, must necessarily be vested in one or the other of the parties themselves—the government, or the people; because there is no third party to whom it can be entrusted. If the authority be vested in the government, the government is absolute, and the people have no liberties except such as the government sees fit to indulge them with. If, on the other hand, that authority be vested in the people, then the people have all liberties, (as against the government,) except such as substantially the whole people (through a jury) choose to disclaim; and the government can exercise no power except such as substantially the whole people (through a jury) consent that it may exercise.” (Ibid., 10.)
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Hague and Harrop: Would we really want a parliament containing its due proportion of the ignorant, the inarticulate and the corrupt?

The following excerpt is from the 2004 edition of Rod Hague and Martin Harrop’s textbook Comparative Government and Politics (The “Functions of legislatures” section, p. 253):

We have suggested that the essence of assemblies is that they ‘represent’ the wider society to the government. But how can we judge whether, and how well, that function is fulfilled? What features would a fully representative assembly exhibit?

One interpretation, plausible at first sight, is that a representative assembly should be a microcosm of society. The idea here is that a legislature should be society in miniature, literally ‘re-presentating’ society in all its diversity. Such a parliament would balance men and women, rich and poor, black and white, even educated and uneducated, in the same mix as in society. How, after all, could a parliament composted entirely of middle-aged white men go about representing young black women – or vice versa? To retain the confidence of society, the argument continues, a representative assembly must reflect social diversity, standing in for society and not just acting on its behalf (Anne Phillips, The Politics of Presence, 1995).
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