By Stephen Hockman QC,
Nick Clegg has announced the Your Freedom initiative intended to give members of the public the right to nominate unpopular laws they want scrapped. Anyone logged on to the site can nominate a law, or support an existing suggestion for legal reform, under the premise that the most unpopular laws could be scrapped.
But the “raucous, unscripted debates” that this initiative is intended to create are not enough to ensure sustainable, considered evolution of our legal system. “Allowing people to vote and add comments online can only get you so far. The government needs to encourage a much deeper public debate which informs as well as listens in order to avoid a knee-jerk response.” (Alexandra Runswick, deputy director Unlock Democracy)
Clegg is using the initiative to encourage citizens to “be demanding about your liberty, be insistent about your rights” with the suggestion that majority opinion will be translated into legal reform. But similar initiatives in the past failed to deliver this: in Obama’s gov.org debate, all three of the most popular legal reform suggestions were ignored.
Raucous debate is all very well for engaging the public with the laws that define their society, but it is a flawed method for democratic and publicly led legal reform – it leads to circular argument where one person’s civil liberty is another person’s civil imposition, or suggestions that are unfeasible in light of a government mandate. A more fruitful approach – one which forms the foundation of Halsbury’s Law Exchange – is to provide a platform for reasoned, informed dialogue to communicate ideas on reform or legal direction. The public voice should be supplemented by expert opinion and research to develop coherent views on the law and our legal system. These views can then influence existing independent entities (such as the Law Commission) which encourage public responses to consultations and reports on the law.
The law, as the fabric of any democratic society, should be shaped by the people. This is a shared philosophy between the Your Freedom campaign and the Law Exchange. Nick Clegg should be praised for his wanting “to restore Britain’s traditions of freedom and fairness”.
On the other hand, by developing the law we can also help to bring about changes in behaviour within the community at large. There can be little doubt that the strengthening of anti-discrimination legislation has helped to make our country both freer and fairer. Equally, sustained work within the context of contested litigation, and the consequent reasoned decisions of the courts, can themselves have an influential or defining effect upon the climate of opinion. Examples here include the effect upon our tobacco smoking culture of the series of tobacco litigation cases, and the contribution of our highest court to the modernisation of social attitudes towards the gay community.
This kind of beneficial interaction between law and society is unlikely to be enhanced by the Your Freedom initiative.