Citizens’ juries as activism: holding political elites to their constitutional role

For some time now we’ve been ‘proving up’ citizens’ juries as a means of consulting the people, but generally within the context of governments being in charge. As a result they’ve been mostly relatively innocuous. For instance the first two in South Australia were focused on making Adelaide’s nightlife safe and vibrant and getting motorists and cyclists to share the road more safely. They’re pretty anodyne and boutique issues for politicians so it’s pretty low risk. They might generate some answers they’re happy with, help get community buy-in to tricky issues. And if they don’t work out as hoped for, governments can walk away without too much angst.

Having tried exercises with a degree of difficulty of about 3 out of ten, the then Premier of South Australia Jay Weatherill had a rush of blood to the head and tried the citizens’ jury with pike and triple twist – rated in the diagnostic and statistical manual of democracy at 10. Should South Australia start a nuclear waste storage industry? The answer was … no, which wasn’t much fun for anyone. Elsewhere in Melbourne a citizens’ jury worked on a ten year budget plan which was certainly well received at the time. The plan is now a few years old and I’m not sure how well it’s stood the test of time.

In the UK, a consortium of academic and other interests held a citizens’ jury on Brexit but, in the angst ridden atmosphere of Brexit Means Brexit Britain, they were at great pains not to antagonise the politicians who were planning on spending the next four years masterminding what the overwhelming majority of them understood to be the disaster of Brexit (you know, the way Australia’s politicians did abolishing carbon pricing against the better judgement of around 80 percent of them – it’s costing the budget over $10 billion a year since you asked.)

Thus, as the organisers collateral put it dutifully, “The UK’s voters have decided to leave the EU. The Citizens’ Assembly on Brexit is not reopening this question. This decision has already been made.” 1 However I can’t think of any big change that came about from people playing by the rules of the existing system and asking nicely. And the fact is that sortition has roots going deep into our history and culture – in fact back two and a half millennia to Athens, the birthplace of democratic politics, but also back more than 800 years to Magna Carta in our legal system in the form of juries. As public trust plummets for so many institutions, it’s trust in juries is alive and well and while ‘vertical’ trust – the trust of people in large and powerful institutions – has been falling, horizontal trust – in people’s peers and People Like Them has not fallen and may have risen.

And, not being able to recall any form of political activism that brought about major change except by asserting its own legitimacy in competition with the legitimacy of the existing system, I want to find ways of confronting the existing system in its weakest places with the legitimacy of citizens’ juries and sortition where they are strongest. This is the way I put it in a recent interview:

“Detoxing democracy requires a new form of political activism,” Gruen argues. Citizen engagement, and public consultations in particular, have become common strategies to address our growing sense of remoteness from government decisions. However, more often than not, public consultations seek citizens’ views only on small matters. At times, they merely have the function of validating existing decisions. That’s not to say that consultations should not be used by government. Rather, legitimacy requires a fundamental change in the way that public debates take place.

In a number of papers and a public lecture at King’s College London, Gruen is proposing the concept of citizens’ juries as a form of political activism; as a bold assertion of a legitimacy outside the existing (electoral) system of democracy. Citizens’ juries as permanent and fully citizen-driven bodies can bridge the gap between what governments do and the will of the people. “They should ultimately become a core component of our constitution in a deliberative, detoxified democracy. Until then, they’d be an incredibly effective way of putting pressure on the existing system from the outside. If we could find some philanthropists to get them going, I think they’d be a fantastically cheap investment in another, better future” Gruen argues.

That’s why I’m trying to convince people with the money to have a Considering Brexit Day in the form of 10 citizens’ juries around Britain all concluding on the same day. As I’ve argued there’s very strong evidence that it would produce a decisive swing from somewhere around 50:50 to around 60:40 against Brexit.

That’s why I think political parties could access the legitimacy of sortition by challenging their opponents to a citizens’ jury on a given issue. I can think of good bets for the ALP on this score. Tax and welfare would probably be the most promising for them as I expect when people saw where their tax expenditure money was going the ALP’s priorities would appeal to more people than the coalitions. It’s also an area in which the Opposition – unusually for an opposition – is being fairly transparent about it’s plans – and taking the trouble to make them add up. Another one would be energy and greenhouse, though there I’m not sure the ALP have quite levelled with anyone about the costs of reintroducing carbon pricing, which might make the exercise less enlightening as the spin to substance ratio rose.

For a long time I’ve been wondering how to do this in the US with its very different constitutional structure and culture. Anyway, this evening I realised that one of the greatest dangers for the US is what happens if the revelations about Donald Trump start sliding into illegality and the question of impeachment comes up. It would be pretty terrible for the US constitution for the Republicans to simply ignore all this and keep smiling – with the odd Flake and McCain (if he’s still with us) voting for impeachment.

In such circumstances, a representative panel of Americans swinging from around 40 odd percent support for Trump (which is the support the polls suggest) swinging strongly towards impeachment – which I expect they would if Trump was clearly guilty of criminal activity – could be very influential in making it difficult for the Senate to avoid doing its duty. Of course the citizens’ jury might not swing as I expect, but I’m putting my faith in it not doing so. And if it does, well then things are even worse, a lot worse than I thought. And if it does do it’s duty there’s the American Constitution saved right there – the self-evident truths and the right to life, liberty and the pursuit of happenstance might just keep on chugging along.

  1. Likewise Kate Green, Labour MP for Stretford and Urmston maintained party discipline:

    It’s a great pity that we didn’t have a citizens’ assembly before the referendum took place, on what is actually the biggest political, economic and constitutional decision of my adult lifetime. I think we have an opportunity now to use the outcome of the Assembly to inform decision-making as we leave the EU.

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17 Responses to Citizens’ juries as activism: holding political elites to their constitutional role

  1. conrad says:

    To me a lot of the benefits I see for these juries is for small issues like those in South Australia, where as far as I can tell they act more or less like focus groups or cheap and fast versions of small-scale public inquiries. If you are going to have a large scale voting process with widespread consultation like Brexit I don’t see the necessity, unless you want a reason to ignore to the popular vote. You might think this would be a good way of over-turning Brexit because you don’t happen to like it, but this strategy could be used for more or less anything and thus easy to exploit, especially for things where public opinion swings widely (e.g., the death penalty after especially nasty crimes). Similarly if Trump has really done illegal stuff, then this is a matter of the law, and I don’t see any further need for such juries in this sort of a case.

  2. Nicholas Gruen says:

    Thanks for the comment Conrad.

    The problem is that elections are not deliberative and indeed becoming less so. They’re a theatre of polarised and polarising, alienated and alienating point scoring.

    I don’t mind if the British people really want out of the EU, I mind that they’re being hassled into it. And the way the game is set up, there’s no alternative for those who oppose Brexit but to try to hassle voters back into it. In other words the ‘messaging’ required by the various media available are all so summary, so highly wrought emotionally that it doesn’t look like deliberation to me – just as Question Time doesn’t look like accountability.

    Let me ask you a question, without knowing the subject or the answers, if I told you that I could demonstrate some systematic change of opinion after deliberation amongst ordinary people, would you be more likely to support their view before or after deliberation? And which view would you regard as more in the spirit of ‘democracy’?

    • conrad says:

      In terms of the first part of the question, it depends on the question — if it was one where there was not much knowledge nor much real debate, which is most issues (say vs. e.g., the live animal trade, bicycle paths, charging for entry to national parks…), then I’d be more likely to support their view after deliberation. Some thought is clearly better than no thought. I’m happy to have this sort of thing go on and I think it is in the spirit of democracy (as are similar things like public inquiries, but this is nicer because people to communicate with others).

      If it is a broader key issue like Brexit, then I don’t see why these people wouldn’t have already talked and thought about the issue with other ordinary people, in which case the problem isn’t that people are not talking about it to each other (they most likely are), the problem is they are influenced by factors you note above. I don’t see how citizen’s juries solve this (and the tribalisation of thought in general) apart from giving them an extra data point to consider.

      The other problem with these groups on bigger issues is that they arn’t representative, and so if you have a very evenly split election like as happened with Brexit, then using their opinion over one in which everyone votes is clearly undemocratic in my books. The fact that elections are becoming increasingly to do with point scoring etc. seems to me a cultural problem with our education and expectations of politicians that needs to be fixed, and whilst I’m happy to have citizen’s juries and to publicize their results, I don’t think they should used above more formal processes which really are representative.

      • Nicholas Gruen says:

        Thanks Conrad,

        On citizens’ jury’s ‘representativeness’, I agree with you whenever there’s not much swing as a result of deliberation. That’s basically the way we run legal juries which have to come to strong consensus – still unanimous in some jurisdictions – to have any influence. I think the same goes for citizens’ juries. If the ‘swing’ isn’t substantial with a fair bit of statistical significance, it shouldn’t be given any power. In my model Australian constitution, a citizens’ chamber would start acquiring some genuine power in our constitution (its first power being to impose a secret ballot on any chamber with which it disagreed) only upon a super majority being formed.

  3. John Burnheim says:

    Democracy is focussed on legitimacy conceived as the will of the majority. That is potentially totalitarian and tyrannical. So liberal democracy limits the range of democratic power and entrusts decisions to certain formalised processes that can easily result in decisions that are not in the interest of mast of the people on some particular issues, sometimes because a minority can dominate a party and that party the electorate. That does not matter too mochas long as the minorities keep changing and any serious damage is reparable. The insistence on regular opportunities for change parties has proved effective as a protection against Tyranny.
    But in the modern world that is not enough because we are faced with issues where the damage of a wrong decision or failure to act may be catastrophic and irreparable. In these circumstances it is crucial that the dominant public opinion on such issues be sound and string. Such issues as climate change, the global monetary system, nuclear war, and population growth, are both very complex and involve factors that are outside the experience of most people. Worse still, they demand action on a global scale. A sound public opinion on them is unlikely to emerge from unfocused debate in ether media or even from a sample of ordinary people.
    It is critical that all th considerations that are relevant to the problem be acknowledged in the debate and argued competently. I have published a proposal for a type of forum that is completely open to anonymous participation by anybody who has something relevant to say on the specific issue being debated. Neither numbers nor stuff count, but only the strength of arguments completely open to public scrutiny.
    The forum has no power except the power to convince. People who really wanted to get the best possible advice about the matter would have a source of advice they could trust. It has only become possible with the advent of the internet.

    • Nicholas Gruen says:

      Thanks John,

      I agree that “it is critical that all the considerations that are relevant to the problem be acknowledged in the debate and argued competently”. I just think that Parliament and the media are getting further and further from that goal with every passing year and have no idea how you establish such a system. As you know, I don’t think what you’re proposing would get anywhere in our political culture or any other one I can imagine that’s remotely similar to it.

      My only reason for supporting citizens’ juries is that I think they take us closer to that destination (of course still miles from it), than anything else I can think of. The two hurdles are firstly getting enough support to come into existence and then having sufficient influence on the existing system to be influential. I think citizens’ jury’s might pass those tests whereas I can’t see your proposals doing so.

      I could imagine more involvement by citizens’ juries helping to influence political culture to make your proposals somewhat more appealing to the polity.

  4. R. N. England says:

    I think it’s about time we forgot the illusion that citizens’ decisions and opinions are original to them, and therefore will somehow guide us to a workable, sustainable society. We urgently need to deal seriously with the quality of the input that has shaped those decisions and opinions. Whenever the people are about to make major decisions, such as the membership of the next government, they are bombarded with dumbed-down garbage concocted by highly paid professionals hired by interest groups. The groups with most cash usually win. Though it peaks at election times, this kind of garbage is around all the time. It overwhelms education. It has given us what is known as the American way of life. It has given us economic man. Citizens’ juries are exposed to it as much as everybody else. Garbage in. Garbage out. Citizens’ juries are not an answer.

    How do we fix it? Something a lot of people believe in passionately has to go. We need to clamp down on freedom of speech. Public statements can’t be the kind of bullshit, fraud, and calumny we get now in the advertising and political world. They need to meet the standards of Science. Otherwise they need to be censored and the people who spread them cut off from society until they have learned the new rules.

    • paul frijters says:

      hahahahahaha. And who is going to police all this authoritarian monitoring? Let me assure you that it wont be people who have your interests at heart!

      The answer to the failure of authority is unlikely to be more authority! It will have to be populations that save their countries. No one else has an interest in doing so.

      • R. N. England says:

        I don’t think problem is likely to be fixed in this way or any other. The offenders have too much power. America is further advanced, but Australia and Britain are not far behind. Trump is only a symptom of the disease of Angloculture that is probably terminal. The Australian people want to elect their own President. With a bit of extra support from vested interests, our first Australian head of state could be Alan Jones.

  5. Matt Moore says:

    One concept that has grabbed me recently is that of “Super Wicked Problems”: https://link.springer.com/article/10.1007/s11077-012-9151-0

    It strikes me (perhaps incorrectly) that our current democratic predicament is an SWP, Such problems are rarely solvable with a single, technocratic fix.

    I am broadly in favour of sortition and citizen juries as one possible option for making a new politics – or at least a politics that is flawed in new and productive ways rather than old and unproductive ones.

    I don’t know if it is the answer. I suspect it probably isn’t – at least not by itself – it seems coy about the brutish core of politics (identity and power) and wishes to focus on the polite business of rational discussion.

    But it’s worth a crack.

  6. Nicholas Gruen says:

    Thanks Matt,

    The expression “wicked problem” always annoyed me – so prissy, so British (those things are not supposed to be synonyms by the way). The way it comes upon complexity and then says “oh, things are complex and there are lots of things going on and we don’t know how to fix it, so we’d better have a special name for this”.

    Pahhleese. Now we’ve got super wicked problems. Are we in a cartoon or something. Will spiderman turn up in time?

    Naturally enough, having pointed to some fairly obvious things, the abstract of the article calls for more research. That’s one small step for a man trying to get tenure, another small leap for his university trying to hit its KPIs. Oh well, maybe there are some good examples of path dependent, commitment snowballing policies in the article. Do you know?

    • Matt Moore says:

      Where as when I hear “wicked”, I want to prefix it with “Hear the Drummer Get” (in florescent wildstyle graffs). The notion of “wicked problems” is a useful one when have discussions with technocrats IMO.

      “Are we in a cartoon or something.”

      Yes. We are. I thought that was obvious.

      I have read the SWP paper. Beyond the concept and some of the additional criteria on top of WPs, it was a bit disappointing. It is worth a glance if you can see it for free.

  7. Ronald Pottol says:

    Have you seen the book “Beasts and Gods: How Democracy Changed Its Meaning and Lost Its Purpose” by Roslyn Fuller? I’ve found it to be a very interesting look at how the Greeks and Romans worked things, how we believed the wrong spin on how they worked, and how we are going wrong. I’ve not finished it yet, but your post strongly reminded me of it (and that I need to push it back to the top of the pile).

  8. Nicholas Gruen says:

    Fabulous Ronald

    Looks very interesting. Have downloaded the sample, but expect I’ll bust through it and hit ‘buy’ when I get the hard word.

  9. Nicholas Gruen says:

    I’m afraid I’ve been reading her and am pretty non-plussed. She’s got a pretty low grade smart-arsed style when arguing with others.

    Here she is arguing with Andrew Sullivan:

    Plato’s main argument — according to Sullivan — is that democracy would degenerate in its later stages to some kind of carefree, nonjudgmental egalitarian society, devoid of the authoritarian elites that Sullivan thinks are so vital to keeping the rest of us from running amok.

    However, we don’t have to rely on what Plato speculated would eventually befall Athenian democracy, because we know what did happen in the democracy that really did exist in Plato’s time. Despite penning nearly 8,000 words on the topic, Sullivan preferred to take Plato’s speculation, as he didn’t have time to go into all the “wrinkles and eddies” of Athenian politics, so allow me to fill in the gaps.

    Most of our factual information about democracy (as opposed to Plato’s lengthy if erudite rant) comes from Aristotle, who decided to do something useful with his life and write down the details of Athenian state organization; Thucydides, who recorded a large chunk of Athenian history; the comedic plays of Aristophanes; the preserved speeches that Athenians made in the law courts and Assembly; as well as an assortment of pamphlets, memos, and other paraphernalia.

    Now let’s examine those sources — and here’s a piece of advice I’ll give you for free: this is often a good idea before you write an article about something.

    I read the whole first chapter of her book – OK I skimmed it – and didn’t run into anything that caught my attention. You could say it was introductory and I know enough for that not to be of interest, but often such introductions ARE of interest as you tune into an author’s sensibility.

    Not much sensibility here I’m afraid. A person deeply unaware of her own limitations.

    • Ronald Pottol says:

      Well, I bought it in 2016, and haven’t finished it, on the other hand, I keep coming back to it. I wasn’t aware of any real details of Athenian democracy, and that’s been interesting, and her points about how our systems have failed are at least a new perspective (we took the Romans word about why the Greeks failed, and our system is failing in similar way to how the Romans did).

      It’s not a great book (no one is sick of me going on about it, unlike some others I’ve read), but I’ve found it interesting, and looking at an aspect I haven’t really looked at deeply.

      • Nicholas Gruen says:

        Yes, I think the contrast with Rome and falling for the Rome frameup of Athens sounds interesting. I was going to buy the book – on Google e-books for that alone, but I find it genuinely hard to cope with the braggadocio. She also goes off on rants that are predicated on a mix of self-righteousness and bad manners – where you don’t really bother with what someone was trying to get at, you just hop in like the one I quoted above.

        As Andrew Sullivan, bemusedly responds after her rant, “I fear we may be talking at cross purposes.”

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