Globalization and Governance: The Prospects for Democracy

The contours of public law are changing rapidly, and judges, practitioners, and academic writers are anxiously seeking a guide to the new frontiers. Reference has been made by some American observers to the “profound changes brought about by deregulation, commercialization, corporatization, public sector downsizing, privatization and globalization.” At the same time, the courts in many jurisdictions are revising the language as well as the substance of the changing law, often by reference to developments in other countries, and there is renewed concern about the prospects for democracy in a climate of globalization, with issues of democratic governance unsurprisingly achieving prominence in public international law as well as in national law. Democracy “used to be a word that international commentators preferred to avoid,” and it is a term that has often invited skepticism or embarrassment in domestic law.

In writing on “The Democratic Character of Judicial Review” Eugene Rostow commented that democracy “is a slippery term,” and it is doubtless wise to avoid a firm definition. The existence of a free, democratic system of government creates, in the words of Ivor Jennings, “an atmosphere of freedom which is more easily felt than analyzed,” and it is possible to speak of parliamentary institutions, of second chambers, of free elections, of fair elections, of judicial review (in one form or another), of the protection of human rights, of transparency, and of freedom of information as the attributes of democracy which would command attention. At the same time, the emphasis on any of these attributes could vary significantly, and there can be major differences of view as to the precise machinery necessary to achieve them. Amid the many constitutional changes undertaken or mooted in the United Kingdom since 1997, there is ample evidence of the foot dragging that occurs when the ground seems much more shaky than originally contemplated; it would be misleading to ignore such evidence in the context of trends towards globalization.

Despite various positive achievements, ranging from incorporation of the European Convention on Human Rights to varying schemes of devolution under legislation of 1998, there has been disappointment in several areas. Initial plans for greater open government were welcomed, but later legislative proposals were more restrictive; implementation of the Freedom of Information Act (FOIA) of 2000 has, even so, been delayed. At the outset of negotiations concerning the FOIA, there was a gesture towards globalization in the acknowledgment that the United Kingdom could learn from the experience of “mature fellow democracies” such as Sweden, the United States, Canada, Australia, New Zealand, and the Netherlands, and the FOIA of 2000 still reflected considerable overseas influence. Changes in the voting system for the Westminister Parliament were confidently expected after a measure of proportional representation was introduced for the devolved assemblies in Edinburgh, Belfast, and Cardiff, the introduction of proportional representation in elections to the European Parliament, and publication, in 1998, of the Report of the Independent Commission on the Voting System. The Commission had been charged with recommending for Westminister the best alternative “system or combination of systems” to the existing “First Past the Post” (FPTP) system of election, with the expectation that the matter would be put to the British electorate in a referendum. One of the criteria emphasized by the Commission was that of fairness to voters, and the electoral systems of other countries—including the Republic of Ireland, Germany, Israel, Italy, France, New Zealand, Australia, India—were described. It was accepted that the United Kingdom shares FPTP with Canada and the United States, but no referendum has yet been held or planned on whether we should retain that system. The Commission did make this comment:

The United States is of course the most powerful democracy in the world, with an impressive record of world leadership for nearly the past sixty years. On the other hand it is a presidential and not a parliamentary system in the British sense (which may be good or bad but weakens the comparison), its level of participation in elections, at barely 50% for Presidential elections and only 37% in the last mid-term Congressional elections, is appallingly low, and some would say that its system of government has not recently been a great advertisement for democratic maturity.

What, then, of the second chamber of Parliament at Westminster—the unelected House of Lords? After the House of Lords Act 1999, which severely curtailed the hereditary element, there was a Report of the Royal Commission in 2000 that produced 132 recommendations and led to expectations of widespread reform of the second chamber. Delay followed, and it was only in November 2001 that a White Paper appeared, opening with the Prime Minister’s words that a “credible and effective second chamber is vital to the health of Britain’s democracy.” This fresh contribution by the Government spoke of removing the hereditary element completely, of reemphasizing the constitutional preeminence of the House of Commons, of retaining a legislative, deliberative, and scrutinizing role for the House of Lords, of modestly extending the powers of the second chamber in secondary legislation, and of organizing its composition to allow for a majority of nominated members and a minority elected element. Conscious once again of comparative guides, the Government stressed that directly elected second chambers are not common elsewhere: the “idea that the directly elected US Senate is the norm against which others should be judged is wrong. It is a component of the interlocking federal arrangements within the USA.” Even so, the proposals on composition were not widely welcomed and there was widespread support for a larger elected membership. New legislation is unlikely for some time yet.

As the courts of law face the challenges of globalization, much remains to be done in improving democratic institutions and democratic accountability. The justice system is itself under scrutiny, and once again external models are important. In March 2001, for instance, there appeared a Report on Tribunals that examined a host of administrative tribunals or agencies other than ordinary courts of law, with the emphasis on efficiency, fairness, coherence, public understanding, and compatibility with the requirements of the European Convention on Human Rights as to independence and impartiality. The jurisdiction of the seventy or so categories of tribunal discussed extended to such areas as taxation, social security, mental health, immigration, employment, school admissions, criminal injuries compensation, and pensions. Globalization is reflected in the work of the Immigration Appellate Authorities, which hear appeals from refusal of asylum or of permanent residence in the United Kingdom, and it is also reflected in parts of the Report concerned with Information Technology, devolution within the United Kingdom, and the system of administrative justice created at federal level in Australia through innovative and important statutes of the 1970s. The work of the Council on Tribunals, which currently supervises over eighty tribunals and other agencies, including the Civil Aviation Authority, the Director-General of Fair Trading, the National Lottery Commission, and the Occupational Pensions Regulatory Authority, was also considered and endorsed. In its latest Annual Report, the Council spoke of the importance of overseas contacts, not least “to gain insight into how different legal and administrative systems tackle the problems with which we are concerned,” and referred to the visit of a Russian delegation and to a major conference on administrative justice, hosted in Quebec by the Council of Canadian Administrative Tribunals.

Also issued in 2001 was the Review of the Criminal Courts of England and Wales, conducted by Lord Justice Auld. Full account was taken of experience in Europe generally and in North America, and public responses and perceptions were—as in the Leggatt Report—carefully examined. Historical misconceptions about jury trial were also exposed: there is no “right” to jury trial, neither under Magna Carta, nor as a “constitutional entitlement” as in the United States and Canada, nor as a result of incorporation of the European Convention on Human Rights. Lord Justice Auld rejected any democratic element in jury service, and he saw no justification for moving to the U.S. system of jury challenges. As for “perverse verdicts,” when juries allegedly disapprove of the law or of particular prosecutions in apparent “dispensing” verdicts of “not guilty,” they are seen as a “blatant affront to the legal process” and to efforts to combat crime. Much of the general discussion on these and other matters, in a lengthy and detailed Report, could cross frontiers and add to the impact of globalization. Both the Leggatt and the Auld Reports remind us of the volatility of legal systems as they adapt to new and shared challenges and problems.