Here is a podcast of Dr. David Owen speaking at Oxford University, for the Refugee Studies Centre’s 2017 Public Seminar Series. His talk is entitled, “Refugees and the Politics of Indignity.” The series was convened by Matthew J. Gibney.
Here is a podcast of Dr. David Owen speaking at Oxford University, for the Refugee Studies Centre’s 2017 Public Seminar Series. His talk is entitled, “Refugees and the Politics of Indignity.” The series was convened by Matthew J. Gibney.
How should responsibilities for refugees be distributed? According to the UNHCR, at the end of 2014 there were 19.5 million refugees among a total of 59.5 million forcibly displaced persons worldwide. 1 Developing countries hosted 86 % of this refugee population (up from 70 % ten years previously.) Lebanon (26 %) and Jordan (9.8 %) have the highest per capita ratios of refugees worldwide. Is this a fair distribution of responsibilities?
Considerations of fairness have been much to the fore in the political rhetoric of debates concerning current flows of Syrian refugees into the European Union (although to put this into perspective, from the beginning of the crisis up to the end of 2015, the total number of asylum applications from Syrians in the European Union reached 681,713, while in the same period the number of Syrian refugees in Turkey amounted to 2.18 million ). But at least one of the difficulties in this debate is that there is no agreement among states, globally or within the EU, concerning what would count as criteria of a fair distribution of responsibility for refugees.
The current EU crisis also illustrates a further question that is urgent in the contemporary context: what are the limits on state’s obligations to refugees? Is it, for example, sufficient to have done one’s fair share or, in the absence of established criteria, to have done what a good faith effort to work out one’s fair share required? Or do states that have done their fair share have an obligation to take up the slack consequent on others failing to do their fair share?
In ‘Refugees, Fairness and Taking up the Slack’ – available open access here – I argue that in circumstances where not all states do their fair share, human rights protecting states are morally obliged to do more than their fair share, i.e., that refugee protection takes priority over fair distribution of responsibility for refugee protection. However I also draw attention to the prudential point that effective refugee protection is likely to depend on states being willing to do their fair share. Combining these claims, I argue that states have a duty to come to arrangements that, as far as plausible, aim at ensuring a fair distribution of responsibilities.
If the political task is thus that of establishing effective mechanisms for determining fair shares and generating reasonable compliance among states, what are prospects for the fulfillment of this duty? The article provides some reasons for thinking that any general rule for directly determining fair shares is both open to reasonable disagreement and is liable to be skewed by states’ perception of their own interests. It further argues that we have little reason to be confident that states will support the establishment of effective compliance measures – a point sadly illustrated by the failure of EU cooperation in the current refugee crisis.
Refugee crises as political crises are always a combination of a crisis of production and a crisis of response. As things stand, there is little reason to think that both types of crisis will not continue to recur. What this suggests is that we need both to recognize that the existing refugee regime – for all its limitations – is a considerable political achievement – and to acknowledge the extent of the hard political work that will be needed to address current and future refugee crises.
In The Discourses, the infamously astute republican thinker Niccolo Machiavelli argued that the strength and vitality of the Roman Republic compared to other republics lay in the fact that it successfully institutionalised the inevitable antagonism of the people and the nobles in such a way that each held the threat posed to the republic by the other in check and hence republican liberty was preserved. Mercilessly mocking the pieties of republican thinkers who imagined a harmonious transcendence of this antagonism, Machiavelli recognised that a sustainable balance of opposing forces could produce something stronger and more resilient than efforts at harmonious unity could realistically hope to achieve. Machiavelli’s insight is one that the Labour Party, in the midst of its current travails, would do well to remember since the history of the Labour Party is also one of antagonism between opposed forces. Simplifying somewhat we can see the current implosion as a recurrence of a tension that has structured the history of the Party from its inception between a Left that is focused on Labour as a transformative social movement and a Right that is focused on the acquisition of Parliamentary power (with plenty of folk in between). When the Labour Party has functioned at its best, the role of the Left has been to keep the Right honest, to block its tendency to surrender too much in its electoral pursuit of power, to prioritize short-term tactics over long-term strategy, and the role of the Right has been to keep the Left focused on the point that principle is impotent in the absence of power, that sacrificing electoral success (or deluding yourself concerning the prospects of such success) for ideological reasons surrenders the field to an opponent who will not advance the interests of the people that the Labour Party is meant to serve. There are, though, relatively few points in its fractious recent history in which the organisation of the Labour Party has successfully institutionalized this antagonism, although it is vital to its ability to succeed as a political party.
Today it seems that the Labour Party is closer to a split than anytime since 1981. The Left with its Leader in place has responded to a rebellion of the vast majority of its MPs by reaching, once again, for its long established vocabulary of betrayal and plots, asserting its claim to represent the true flame of socialism and, at times, dismissing the importance of becoming the governing party. The Right draws on its long-practised appeal to electorability, to being a credible government in waiting, asserting its claim to represent those who will suffer once more if the field of government is effectively abandoned to Tory rule. Meanwhile Corbyn is holding firm and leadership challenges by Eagle and Smith are already on the table, while NEC decisions are surrounded in a penumbra of recrimination. There is almost no hope of compromise.
So let’s stand back from the field of internecine conflict and ask if an institutional change might help alter the terrain. Suppose, for example, the role of Leader of the Labour Party were divided into three roles. The Chair of the Party, elected by members, who has the role of re-building Labour as a social movement across the country. The Leader of the PLP, elected by the MPs, with the role of mounting effective parliamentary government and opposition. The General Secretary of the Party, elected by members and MPs (through an electoral college), who occupies the role of organising party campaigns and, with the other two leaders, working out its strategy. Such a structure would aim not to overcome but to balance the tensions between Left and Right – as Labour Party structures have generally tried to do – in order to realise the strength and vitality of the Labour movement in a parliamentary form.
How might this help the Labour Party in its current crisis? It is relatively easy to see Jeremy Corbyn’s real strengths coming to the fore in the role of Chair of the Party without being undermined by his real weaknesses. Similarly the General Secretary role is a natural fit for Tom Watson (and others like Stella Creasy). As for Leader of the PLP, well there are several plausible candidates other than those currently standing against Corbyn: Lisa Nandy, Keir Starmer, Dan Jarvis would be among those uncluttered by the past. No doubt there are flaws in this proposal, it would be surprising if there were not, but my point in proposing it for consideration is to draw attention to the point that the problems bedevilling the Labour Party are not new and are not likely to be solved simply by changes of personnel. Rather it needs to think seriously about its organisation and how is structures the division of leadership responsibilities in order to use its internal antagonisms as a source of strength rather than weakness.
The age of party democracy has passed. Although the parties themselves remain, they have become so disconnected from the wider society, and pursue a form of competition that is so lacking in meaning, that they no longer seem capable of sustaining democracy in its present form. (Peter Mair, Ruling the Void)
In the UK, party politics has always been refracted through the first-past-the-post electoral system that demanded that both Labour Party and Conservative Party adopt ‘broad church’ approaches, representing and conciliating diverse sectors of society. Yet the cultural and social shifts that emerged in the 1960s and came to fruition in the 1980s as the twin phenomena of individualization and globalization have been enabling conditions for trends of declining party membership, declining voter turnout across elections, and declining partisan allegiance. It is an important consequence of these phenomena, however, that political parties can no longer play the role of mediating between society and state that emerged with, and sustained, mass party democracy.
With Labour and Conservative vote share declining from 97% in 1951 to 67% in 2015, electoral logic has driven both parties to a focus on key swing voters and a relative neglect of those who, in Peter Mandelson’s brutal phrase, ‘have nowhere else to go’. While with membership declining from 1950s highs of 1,100,000 and 2,800,000 respectively to figures under 200,000 for the Tories and under 400,000 for Labour (helped upwards by a rise under Corbyn), the local infrastructures of both parties have weakened at the same time that professionalization of politics under the discipline of a 24 hour new cycle drove centralization of party control and the disconnection of ‘the Westminster bubble’ from regional and local roots. The changing conditions of these political parties, no longer meaningfully ‘mass organizations’, was further impacted by the post-devolution boost to the SNP and Plaid Cymru as their ability to portray themselves as ‘national’ parties for the whole of the UK (excepting the special case of Northern Ireand) has become increasingly tenuous, with the Greens and UKIP adding to the electoral complexity.
It is commonplace to recognize that David Cameron’s reckless political gamble with Britain’s membership in the EU was driven by a failure of authority within a fragmented Conservative Party that was exacerbated by the rise of UKIP. But this is reflective of a wider phenomenon. As Will Jennings and Martin Lodge argue:
More generally, then, the increased use of referenda and other methods of direct democracy in British politics should not necessarily be seen as advances of participation. Rather, they should be seen as attempts by party leaderships to overcome their own internal party conflicts. In the case of Labour, direct elections of the leader offered the dual promise of reduced trade union influence and symbolic gesturing that office-seeking was somewhat checked by the party. In the case of David Cameron and the Conservatives, it was an attempt to maintain illusions of ‘governing’ (i.e. ‘control’) by offering voters a choice while the real world has turned ever more into one that demands compromise, bargaining and dealing in trade-offs.
The current internal debacle of the Labour Party presents itself as driven by the traditional competing logics of the Party as a vehicle for gaining power and as the medium of a social movement. But lacking the bulwark of mass membership, it is more accurately depicted as a competition for control between an organised sect and a professional elite.
The Brexit Referendum and the responses of the two parties to the outcome of this referendum demonstrate nothing more truly than Mair’s argument that mass party politics, and party democracy, is dead and we do not yet know how, or with what, to replace it.
In this context, what steps may help? Perhaps the first is to recognize the reality of this situation and that the social and political conditions under which our electoral system could be justified no longer apply. A shift to some forms of proportional representation is both democratically necessary as well as providing a mechanism for encouraging greater party responsiveness to people across the UK. A second possible move is for regional devolution in England (modelled on the Welsh Assembly) combined with a shift in the structure of Labour and Conservative parties to a more federal form and, quite possibly, the rise of regional political parties (such as Yorkshire First). In both cases, national government becomes more complex but the role of parties in mediating between society and state is given new, if different, life.
Listen to PAIR’s Professor David Owen debating with David Goodhart (director of the Integration Hub and former director of Demos) on the right to asylum and Europe’s response to the refugee crisis.
Whereas David Owen puts forward the view that the entire world order of states suffers a legitimacy problem when refugees go unprotected, David Goodhart argues that it is a fantasy to talk about people having human rights when their own states are not protecting them.
You can listen to the discussion in full below:
This debate was recorded for Talking Migration, a podcast produced by Dr Clara Sandelind at the University of Huddersfield and supported by the Centre for Research in the Social Sciences and the Division of Journalism and Media.
On June 7th 2015, the people of Luxembourg will be voting in a referendum covering four separate questions:
Although all raise fascinating points for political theory and practice, it is the second – national voting rights for resident non-citizens – that raises the most challenging issues for contemporary states in contexts of migration and for EU member states in the context of the right to freedom of movement enjoyed by EU citizens. On the 20th-21st March I was privileged to be invited as an expert in a wide-ranging intellectual debate on this issue held in the Chambre des Députés du Grand-Duché de Luxembourg in which a group of historians, lawyers, sociologists and political scientists presented a range of perspectives on resident non-citizen suffrage to an audience of parliamentary representatives, activists, academics and students. Organized by Professor Philippe Poirier and his colleagues at the University of Luxembourg with the cooperation of the Luxembourg Parliament in order to enhance political debate, the event exemplified how academic research can inform, and be challenged by, the diversity of political perspectives that characterize a democratic state.
The question of resident non-citizen suffrage in national elections has real political significance for Luxembourg. About 45% of its residents are non-citizens (with about 85% of these being EU citizens). On the one hand, this looks like a serious democratic problem with almost half the population being denied national political representation in its legislative body. On the other hand, it is easy to see that the people of Luxembourg might reasonably be concerned that permitting national suffrage rights to resident non-citizens would undermine their ability to control their own political destiny.
One response to this dilemma is to make acquisition of nationality relatively straightforward and on the 1st January 2009 Luxembourg introduced new naturalization legislation that permitted dual/plural nationality and a double ius soli principle. This has had significant impact:
The number of valid demands for nationalisation quadrupled, going from 1065 in 2008 to 11770 for the period of the 1st January 2009 to the 31 December 2011. The Luxembourgish nationality was granted to 11736 persons, quasi 4000 per year. … By comparison, in 2008, only 1215 persons acquired the Luxembourg nationality. Furthermore, by double ius soli, 3414 persons of less than 18 years age, born in the Grand-Duchy of foreign parents of whom one was also born in Luxembourg, acquired Luxembourg nationality on the 1st January 2009. Following the assessment of the STATEC (National Institute of Statistics and Economic Studies), from 2009 to 2011, approximately another 1000 children became Luxembourgers by double ius soli, and 2491 children were naturalised along with one of their parents. A total of about 18500 new Luxembourgers in three years, mainly because of the innovations introduced by the law of 2008.
However, as already noted, the number of resident non-citizens today is c.45% with c.85% being EU citizens. For Luxembourg, it seems a decision must be made.
The vote in Luxembourg is also, however, also significant for the EU. Currently the EU has a demos problem in that EU citizens who exercise their civil right of freedom of movement may find themselves disenfranchised at the national voting level in both their state(s) of nationality and their state of residence. This is a democratic wrong but it is one that the EU as an institution has no competence to resolve. There are several possible ways of resolving this problem. But given (a) that the institutional architecture of the EU is neither purely intergovernmental (which would support tying national voting rights to naturalization) or purely federal (which would support tying national voting rights to residence) and (b) that EU citizenship entitles EU citizens who move to other member states to be treated as de facto dual nationals for a wide range of purposes, one fitting way of addressing this problem would be for Member States to allow such Second Country Nationals to become ‘Resident Electors’ after a reasonable period of residence. A ‘Yes’ vote in Luxembourg’s referendum (although it would also encompass a small number of non-EU citizens) would provide an example to the EU of such a practice. A ‘No’ vote would push the agenda in the direction of either reciprocal arrangements between specific Member States or expatriate voting rights for Second Country Nationals or some combination of the two. Luxembourg’s decision thus has implications that are wider than its own national affairs – and it is also for this reason that the engagement of academics, citizens and politicians in the event organized by the University of Luxembourg in association with their Parliament was such a welcome endeavor.
Recently proposals have been advanced for reform of the USS Pension which will have very considerable effects on both those who has been in the Final Salary Scheme and those who only been in the Career-Average Defined Benefits Scheme. Claims and counter-claims have flown about so it worth stepping back to review the position by recalling principles for guiding pension reform and looking at the current dispute in the light of these principles. There are three main kinds of principles involved here:
Let us take each in turn.
Prudence and the calculation of assets and deficit.
Guidance from the Pensions Regulator suggests that valuations should not be based on only worst-case assumptions in every issue as “an appropriate overall level of prudence in the technical provisions should be the paramount objective” of a valuation. But this is precisely what appears to have been done on calculating the USS fund deficit as a recent letter to the THE points out:
False assumptions of the USS
23 OCTOBER 2014
Last week, the Employers Pension Forum published “Proposed Changes to USS – Myths, Misconceptions and Misunderstandings”. The document contains misinformation and a mistake. We focus on the section “M7: The assumptions used to value the fund have been chosen to artificially create a large deficit”.
Having reviewed the assumptions given in the 2013 annual report, we believe, as statisticians and financial mathematicians, that each assumption is inadequately justified and that cumulatively they are unreasonably pessimistic and incoherent. The predicted salary increases assume a buoyant economy while investment returns assume a recession.
For example, the average annual rate of return on assets achieved by the Universities Superannuation Scheme over the past 10 years was about 7 per cent and over the past five years about 11 per cent. It is therefore difficult to understand the EPF’s assertion that “since 2011…the continuing global economic challenges…have had a detrimental impact on the value of USS’ assets”.
Meanwhile, members’ wages are assumed to grow by the retail price index plus 1 per cent (taken to be 4.4 per cent) plus incremental increases. Over the past 20 years the actual rate was about 2.7 per cent, with similar growth over the past 10 years. Post-2008 rates show negative real-pay growth. The age-related assumption is wage growth (1 per cent to 4 per cent) by progress up the salary scale: anecdotally this assumption leads to higher pay growth rates than the majority of academics have experienced over the past 10 or 20 years. As the fund’s actual experience was used to give a mean retirement age of 62 years at the last valuation, it seems odd that salary assumptions do not also reflect actual experience.
The assumptions on mortality appear to be unchanged from the 2011 valuation, yet the EPF archly advances the statement that “members of the USS are living longer so the pension scheme has to pay pensions in retirement for longer than planned” as a reason for deterioration in the fund’s position since 2011.
A reasonable change in any one of these assumptions would give a lower estimated deficit. The EPF states that although changing the assumptions in this instance could affect the size of the deficit, “it cannot change a deficit into a surplus”. It takes little mathematical knowledge to recognise that this statement is wrong.
In other words, the valuation is performed on the basis of various assumptions about likely future experience and each assumption is inadequately justified and that cumulatively they are unreasonably pessimistic.
This letter provides strong prima facie grounds for believing that the calculations involved do not respect the principle of prudence. This is reinforced by a much earlier pre-emptive counter to such reforms of the USS scheme by the pensions expert and LSE governor Ros Altman makes a number of additional points where the headlines are:
Prudent fairness and proposals for reform
Consider the claim invoked in the current proposals is that combined (employer plus employee) contribution rates are projected to rise from 23.5% after the 2011 valuation to around 35% and this, USS claims, is “unaffordable”. It has long been a principle of actuarial valuations of pension funds that valuations should ensure gentle changes in funding rates. This large increase would represent a failure by the fund or its actuaries to observe that principle. There is a reason for the principle of gentle increases, namely, ensuring that the legitimate expectations of members of the pension scheme are not radically breached and this informs the more general principle of prudent fairness that is central here. Professor Mike Otsuka at the LSE has drawn my attention to a related case in which the salient principle is exhibited:
How to close a final salary scheme properly. It’s very simple:
“For all scheme members, any benefits built up in the final salary scheme [up until the date of closure] will be protected and remain in that scheme. When benefits are calculated at retirement, they will be linked to the member’s most recent pensionable earnings (but using the final salary scheme rules).”
That’s what the Teachers Pension Scheme did when they moved everyone in the post-92 higher education sector over from final salary to career average salary defined benefits.
Why did they do that? Because an Independent Commission said that the “Government must honour in full the pension promises that have been accrued by scheme members: their accrued rights. In doing so, the Commission recommends maintaining the final salary link for past service for current members.”
The principle of prudent fairness does not, however, simply concern the transition to a new scheme but also the character of the new scheme. Thus it is proposed that the new scheme would combine a Defined Benefit (DB) element and a Defined Contribution (DC) element with the switch from one to another happening at a given salary level. Yet, as a large scale Canadian study has comprehensively demonstrated (https://cpplc.files.wordpress.com/2014/09/db-vs-dc_plans_research-paper_online_20140924_rvsd1.pdf), DC schemes are much more inefficient than DB schemes and off-load greater levels of risk onto individuals. Dennis Leech at the University of Warwick has also stressed this point here (http://blogs.warwick.ac.uk/files/dennisleech/uss_bham.pptx). Prudent fairness supports maintaining an efficient collective scheme in which risks and benefits are shared fairly among members – such as a Career-Average Defined Benefits Scheme.
Trust in the communication of the fund evaluation and the rationale for, and consequences, of proposed reforms
The final principle concerns how communication is carried out concerning the evaluation and the proposed changes. It is important that whose involved in the process need to be able to trust the communications that they receive if these communications purport to provide neutral and impartial information. On the evaluation side, it is apposite here to note an earlier letter to the THE by Professor Jane Hutton (also one of the signatories of the THE letter cited above):
The Employers Pension Forum published a Q&A purporting to explain the reasons for the proposed changes in the Universities Superannuation Scheme with the date 11 August 2014. I read it in early September, and realised that the life expectancies given under question nine were completely implausible. I did not know whether this was incompetence or an attempt to mislead.
I wrote to the EPF on 9 September, raising questions about this. I have not received a reply. However, when accessed on 2 October, the Q&A had been changed to omit the incorrect life expectancies, but still bore the date 11 August 2014. There was no indication that the change had been made, and the conclusions drawn remained.
As the EPF Q&A claims to provide information, with the implication that the advice is impartial, it is more than disingenuous not to alert readers to the change. The balance of my opinion as to whether the inaccuracy arose from incompetence or dishonesty has altered.
If we turn to consider the issue of the rationale for the reforms, the most obvious concern is that no information is provided on what alternative possible reforms have been considered and why they have been rejected. This is a central element of the response by Oxford University to the consultation and their response is worth reading in full. Oxford’s response also draws attention to the limited timeframe that has been made available for this consultation – a point that is also salient to the issue of trust.
It appears then that members of the USS scheme have prima facie reasons to be mistrustful of the good faith in which the necessity of just these reforms is represented to them. To restore trust requires that the issues raised here are fully and properly addressed.
Universities were founded as ‘civic corporations’ in the medieval sense (this sense of ‘incorporated bodies’ is most obviously exemplified by Guilds). This is why they have Royal Charters. This guild structure still persists in some professions such as architecture and medicine that are self-governing. Their rule is exercised over their membership (for example, both architects and doctors can be ‘struck off’) and over who can be a member (they control the qualification/certification process).
There are three crucial elements here for conceiving of the University:
In each of these respects, it is entirely distinct from a ‘private corporation’ in the modern sense. Why does this matter? And how should this inform how we see the University now?
It matters because universities today, struggling with the demands of marketized higher education and the increasing importance of commercial dimensions of their work, have too easily plumped for frameworks, vocabularies and values drawn from the realm of private business corporations – faute de mieux. Yet the ethos and grammar of the private corporation is both alien to, and at odds with, that of the public (or even private) university. So it is worthwhile to recall and explore a historical grounded alternative – what, then, does this alternative involve?
Consider, first, self-government. We need to distinguish two aspects of self-government here – the ‘legislative’ and ‘executive’ functions. The first point that arises from this is that Executive (the University Senior Management) are subordinate to the Legislature (the University Senate) in one crucial respect: although the ends or strategic goals of a university may be proposed by the Executive for the consideration of Senate, they are set by the membership of the university as civic participations in a self-governing community (via their representatives in Senate). The primary role of the university executive is to develop ways of realizing strategic goals compatible with maintaining the university as a self-governing community through policies, targets, etc. The second point is that the executive are accountable for their performance to the community which means that they report to the community and can be sanctioned by the community (via its representatives in Senate). In institutional terms, the legitimate authority of the Executive to issue commands, set targets, etc., derives from their role as agents of Senate who are accountable to Senate.
This picture is slightly complicated by the third feature, namely, that of ensuring the pursuit of the common good of the members of the University is also productive of the public good (the importance of this is illustrated by the history of guilds in which the common good of the membership could and sometimes did lead to practices that were definitely not directed at the public good). This is essentially the role of a body involving external members representing the Public (the Council of the University) – to make sure that the University is productive of the public good (for example by not being a liability for the public purse). The University as a civic corporation, represented for these purposes by the Vice-Chancellor, is thus accountable to Council as representatives of the Public. In this respect, the autonomy of the University, its capacity for self-government in the most general sense, can be limited by Council where this is deemed necessary or advisable for the public good or, put in modern parlance, for ensuring the University fulfills its mission.
(This double relation of the VC as, on the one hand, leading the Executive as servants of the civic community and as, on the other hand, representing the University in its accountability to Council can set up a tension that is liable to drive VC’s to seek greater power so that they can determine as executive that for which they are held responsible as representative.)
If we consider now the second element, namely, the common good of the membership, we need to address two dimensions. First, who is a member? Second, how is the common good to be worked out? The answer to the first is straightforward: every employee of the University from cleaner to professor, from first year student to communications director. It is, of course, the case that there are different kinds of membership in terms of the rights and duties that pertain to their different roles. It is also the case that their different functions have implications for the governance structures of the University, for example, one might adopt a consociational structure comprised of an Academic Senate that governs academic matters, a Professional Senate that governs professional matters and a Student Union that governs student matters encompassed within an overarching Senate in which all are represented. There can be significant debates on the best governance structures to adopt here but the really key point is that this is a civic community in which all are civic participants and should be able to conceive of, and experience themselves as, ‘citizens’ engaged in a cooperative venture directed at the common good and in the service of the public good.
This is, of course, just a sketch of an alternative way of conceiving of the University but it demonstrates that there is such an alternative and that it has significant implications for how we relate to one another as members of a corporate community. The problem that we currently face is that many academic and non-academic staff see themselves in this kind of way but that they are placed within management structures that act in ways drawn from the opposed conception of the modern private corporation and thus, advertently or not, exploit this fact in order to extract greater labour and thereby generate understandable cynicism and disillusionment with, and alienation from, the University. The ‘connected university’ needs to attend to the character of its internal connections.
This post is a contribution to a debate at openDemocracy initiated by Stuart White and followed by Alan Renwick’s discussion of institutional designs for such a convention. David Owen’s contribution focuses on the question of who should be included in the People for these purposes.
There are a lot of questions raised by the idea of a People’s Constitutional Convention for the UK. The most fundamental, however, is ‘who are the People?’ for this purpose.
In Stuart White’s initial post and Alan Renwick’s acute reflections on the form of such a convention, they adopt the intuitive response to this question: the People are the (adult) citizens of the UK, which we might imagine to be those who can vote in General Elections. The rationale for this view is straightforward: a constitution sets the terms of a political association; it specifies the basic legal form of citizens’ political relationships to one another. This is a good start but I think for these purposes we need to construe the People a bit more widely.
Consider first that not all UK citizens can vote in General Elections, for example, citizens who have been resident abroad for more than 15 years or prisoners serving custodial sentences. Should they be able to participate? Well, notice first that a constitution applies to all citizens regardless of whether they are resident in the UK or not. Any changes to the constitution are binding on all citizens and change their relationships – so, for example, the result of a UK referendum on EU membership would be binding on all UK citizens whether or not they are resident in the UK, the EU or the wider world. Because a constitution sets the terms of their relationship, the People must include non-resident, as well as resident, citizens.
If we turn to prisoners serving custodial sentences, we should note that even if we think that there may be both principled and pragmatic reasons for refusing voting rights in General Elections for some classes of those convicted of criminal offences, a constitutional convention is a different kind of event, one that stands in a much more intimate relationship to one’s standing as a citizen. The loss of voting rights in a General Election says that one is not a citizen in good standing; the loss of the right to participate in a constitutional convention says that one has no civic standing. So all citizens need to be included in terms of either having a vote for representatives or being in the population from which citizens selected by lot are chosen.
But a constitution doesn’t just set the terms on which citizens relate to one another, it also lays down the ground rules for:
Looked at from this angle, everyone who is a resident of (as opposed to a visitor to) the UK has an equally clear and vital interest in being protected from arbitrary exercises of public and private power. Indeed, given that immigrant non-citizens are typically much more exposed to exercises of arbitrary power by the State (perhaps most especially the kind of discretionary power with respect to immigrants currently lodged in the Home Office) and by private actors (perhaps most obviously unscrupulous employers), the case of the inclusion of non-citizen residents is overwhelming. The People needs to encompass residents more generally, not just citizens.
What about non-resident non-citizens? This is a harder issue. It is fairly straightforward to see that this group should be able to make representations to a People’s Constitutional Convention since, in an increasingly interdependent world, their lives are likely to be shaped in part by our actions, but should they have representatives with the decision-making body? Some authors – Ian Shapiro and Robert Goodin, for example – answer in the affirmative. What counts, on this view, is that your morally relevant interests are or may be affected. I am skeptical of this appeal to ‘the all affected interests principle’ as a criterion of democratic inclusion for the reason nicely put by Christopher McMahon:
The people who have a right, under democratic principles, to participate in a decision are not those who are affected by it but those whose actions are guided by it. That is, if the possession of [political] authority is a matter of having a right to direct the actions of some group, democracy is reflexive authority – the generation of authoritative directives by those who will be subject to them. The say in determining a decision that democracy confers is a say in determining what one will do or allow as a member of a group.
Citizens and residents are subject to the authority of the constitution, non-resident, non-citizens are not. This isn’t to say that there are not good moral and epistemic reasons to consult widely with outsiders, there surely are! It is just to say that they need not be included within the People. So non-resident non-citizens should be represented in some way, but probably should not have voting rights in a People’s Constitutional Convention.
Thus far I have treated the People in terms of existing adults, whether citizen or not, resident or not, but ‘the People’ denotes an intergenerational community that exists through time and the decisions, perhaps particularly constitutional decisions, that we make now will shape the world that future generations of UK inherit. If we think about children first as an existent future generation of adult citizens, it is clear first that they have important interests at stake and second that their lives, values and self-understandings as political agents will be significantly shaped by the constitutional character of the UK. Saying simply that they can change the constitution when they reach adulthood fails to acknowledge the fact that they have interests at stake now and that much of their political identity as citizens will already have been formed by then. For these reasons I think that the People needs to encompass the representation of children.
What of not yet existent future generations whom we can envisage only as an indeterminate abstract collective of the yet to be born? It is clear that they, like non-resident non-citizens, will be affected by our decisions – perhaps vitally in respect of whether we include significant environmental norms in any constitution – but should they be represented? In relevant ways, this case looks like the temporal equivalent of the spatial case of non-resident non-citizens and I am inclined to think that they should be treated in the same way, that is, as having rights to make representations to a People’s convention but not be represented within the decision-making People.
If this is cogent, the People for the purpose of a constitutional convention cannot be restricted simply to resident adult citizens. And this expansion of the People has implications for the design of a constitutional convention as well. In order to ensure that the relevant classes of persons are appropriately ‘present’, it is sensible to adopt a design that includes at least some element of structured random selection so that there are not only resident citizens present but also resident non-citizens and non-resident citizens as well as some element of inclusion of governmental representatives such as a Children’s Ombudsman. I therefore favour – in this respect at least – the approach used in Ireland’s recent convention, as discussed by Alan Renwick, as the best way forward for a People’s convention to accommodate an appropriately expansive understanding of the People.
 For a fuller discussion, see David Owen, ‘Transnational Citizenship and the Democratic State’ Critical Review of International Social and Political Philosophy, 14: 5, 2011, pages 641-663.
 For related observations on access to citizenship for residents, See David Owen (2013) ‘Citizenship and the marginalities of migrants’, Critical Review of International Social and Political Philosophy, 16 (3): 26-343 & (2014) ‘Republicanism and the Constitution of Migrant Statuses’
17 (1): 90-110.
 Ian Shapiro The Moral Foundations of Politics (New Haven, Yale University Press) pp.219-20 as well as Robert Goodin ‘Enfranchising All Affected Interests, And Its Alternatives’, Philosophy and Public Affairs 35 (1): 40-68.
Debates concerning the ‘democratic deficit’ have been a prevalent feature of the normative literature on the European Union, but rather less attention has been paid to ‘demos problems’ constructed by the normative ordering of the EU and what such problems reveal about the nature of democratic citizenship in the EU, the character of the EU as a normative order and the institutional character of the relationship between the constitution of the EU as a normative order and as a structure of political incentives. This article addresses this topic by focusing on one such ‘demos problem’.