Abstracts from the July 2008 Conference

Session 3: Charter 88, Constitutionalism and the Law:

The Assault On Constitutionalism: A Cautionary Tale

David Fagelson, American University, Washington D.C.
As human rights advocates celebrate the twentieth anniversary of the birth of Charter 88 and work to achieve its original goals, it might prove useful to examine the experience of other constitutional democracies to consider what practices might be usefully adopted or strenuously avoided. The American constitutional system is a useful subject for consideration not only because of important shared legal traditions, but also because of the significant changes which that system is undergoing. Indeed, the status of the Bill of Rights and the overall constitutional structure of government in the United States have been under terrific strain over the past eight years. Beginning with the post election struggles in 2000 through the casual abrogation of international treaties leading to unprecedented aggrandizement of executive power, the Bush Administration is set to change the trajectory of American constitutional structure. While many people around the world are familiar with the abuse of international law undertaken by the Bush Administration over the last seven years, few outside the United States understand the extent to which this government is staging an assault on individual rights and legal constraints on executive power that are an essential part of American constitutional democracy.

This paper will consider specific attacks on constitutionalism relating to privacy, due process rights and legislative checks on executive power over the military. By showing how these widely treasured rights could be so quickly and successfully subverted without much resistance by the general public, the author hopes to show how other architects of constitutional change can avoid the same mistakes. The paper will also explain why the United States might not be able to correct its course to reinstate the protections of rights and distribution of governmental power by itself. While the political leadership of the US would be loathe to accept, let alone invite international intervention, it will argue that some action by the world community might be the only way to undo the damage to the rule of law in America. By explaining how this intervention could occur and why it is necessary, it is intended to show why those looking to construct the constitutional protection of rights in their own countries should buttress those protections with strong links to international institutions that can act as a check on a governments attempt to aggrandize power.The Ombudsman’s place in a written constitution

The Ombudsman's Place in the Constitution

Richard Kirkham, University of Sheffield &
Brian Thompson, University of Liverpool
Debates on the need for a written constitution have traditionally focussed on human rights and the three key branches of the state: the executive, the legislature and the courts. This approach has often been to the detriment of other vital institutions in a 21st century state, with the 2007 Government Green Paper, The Governance of Britain, being the latest example. In this light, this paper will explore in more detail the meaning of point 8 in Charter 88’s original list of demands and the developments in the area of administrative justice since 1988, especially the evolving role of the ombudsman. It will be argued that a version of point 8 should form one of the key linchpins of any prospective written constitution, alongside a right to good administration. A right to good administration would help give impetus to the development of the administrative justice system and the idea of proportionate and appropriate dispute resolution, as well as helping to confirm that the courts, ombudsmen, agency complaints systems, tribunals and ADR all have a complementary place in remedying disputes. Further, the paper will illustrate the full constitutional potential of the ombudsman by reference to its contribution to holding public authorities to account.

Session 4: Charter 88, Democracy and Levels of Government

Charter 88 – a Welsh View from the Periphery

John Osmond, Institute of Welsh Affairs
This paper, from one of Charter 88’s founding members, offers a personal reflection on the Charter’s relationship with devolution and organizations associated with it. In particular, it explores both efforts made through the Charter to encourage devolutionary thinking amongst Labour policy makers both in London and in Wales and attempts combat London-centric perspectives within the Charter which, according to Osmond, saw PR and human rights as more fundamental than devolution. Finally, the paper will explores the difficulties of getting the Charter to take an all-embracing pan-Brittanic view of constitutional change, typified by its reluctance to take a radical perspective on reform of the House of Lords in the direction of being a federal-style upper-chamber representing the nations and regions.

Charter 88 and Europeanization - an ambiguous relationship?

David Erdos, University of Oxford
This paper will, through the prism of Charter 88, explore the complicated relationship between European integration and the UK constitutional reform movement. As the first part of this paper will explore, the Charter’s origins were intimately and positively linked to the Europeanization of British and, in particular, Labour Party politics. In particular, it was felt that the UK’s European partners generally had “better systems of democracy” and that, therefore, pressures from Europe would be helpful to the task of creating a more consensual and rights respecting system of government in the UK. Nevertheless, secondly and in contrast, especially after Maastricht, it was also recognized that the concentration of, and way in which, decisions were made at the European level could also conflict with the Charter’s goals. Moreover, some individuals associated with the Charter, notably Frank Vibert, even saw its goal of a UK written constitution as a mechanism for counteracting European pressures. These ambivalent attitudes continued to impact on the thinking of both the Charter and its successor organization Unlock Democracy. Nevertheless, thirdly, through an analysis of the latter organization’s response to the Lisbon Treaty, it will be argued that such thinking has generally failed to fully grasp the fundamental difficulties of creating a demos at the European level which, it will be argued, is central to solving the EU’s democratic deficit.

Session 6: Charter 88, constitutionalism and social change

Revisiting the presuppositions of Charter 88

Michael Rustin, University of East London
This paper will examine how radical were the nature of the reform ambitions behind Charter 88. It will pose and explore the following three questions: Was the Charter primarily a campaign to achieve certain political reforms of an essentially liberal kind, aiming to define and guarantee rights for individual citizens, against the embedding of power and authority in traditional hierarchical and inherited structures, or was it, as some of its leading supporters proposed, also a campaign to alter the balance of social relations and social power in British society, to which archaic constitutional arrangements were held to be the key? What were the connections between the political conceptions of the Charter, and the broader social and economic context within which its arguments were made? How far have developments in the last twenty years confirmed or disconfirmed the idea that constitutional change can or should be a catalyst of broader societal changes?

Session 7: Assessing the impact and legacy of the Charter

How the Charter coalition brought about the death of plurality rule voting and the rise of multi-party politics in the UK

Patrick Dunleavy, London School of Economics
This paper examines Charter 88’s impact and legacy as it relates to the issue of electoral reform and the party system. Since 1996 the activities of the constitutional reform movement have seen new AMS voting systems introduced for electing the Scottish Parliament, Welsh National Assembly, and Greater London Assembly; list PR used for European elections; Supplementary Vote for three London mayoral elections; and STV for Scottish local government. By 2010-11 there is a good chance of an STV or List PR system being adopted for a wholly elected Senate and of the Supplementary Vote being used in Commons elections. Any coalition government will certainly have to bring in PR for local government in England. Political science research shows that these changes have fostered a very significant growth of multi-party politics across all regions of the UK, including England. This paper analyses how this electoral systems revolution has been built up by “outsider” groups spearheaded by Charter 88, the Democratic Audit of the UK, the Electoral Reform Society and others, whose research and advocacy have helped build a new “advocacy coalition” for modernizing the UK's voting systems.

Charter 88, New Labour and constitutional anomie

Matt Flinders, University of Sheffield
This paper examines Charter 88’s impact on New Labour. It argues that, although New Labour has implemented a number of constitutional reforms advocated by Charter 88, the Charter was not able to ensure that New Labour’s attitude to reform was informed by a principled and systematic constitutional morality. In fact, in contrast to the consensual vision which underpinned the Charter, New Labour has and continues to exhibit signs of “constitutional anomie” in which different visions of the constitution have been haphazardly and inconsistently grafted onto one other without any clear guiding justification. As a result the reforms which have been implemented have failed to reconnect the governed with the governors and, arguably, have further eroded the public’s perception of politics and politicians.