Citizens’ juries can give reformers legitimacy — or end in tears. Here’s how they can be done well

By David Donaldson

Thursday September 3, 2020

Irish Parliament House, Dublin. Adobe

Deliberative democracy can boost tough reforms and increase public trust if handled carefully. New research distills the ingredients for success.

On October 21st, 2012, Savita Halappanavar presented to Galway University Hospital suffering severe back pain, and was found to be miscarrying.

Over the next few days the 31 year old Indian national was repeatedly denied access to abortion because there was a foetal heartbeat, which doctors said would make the procedure illegal under the Irish constitution.

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She eventually went into septic shock and multiple organ failure, dying of cardiac arrest seven days after entering hospital.

Halappanavar’s death shocked Ireland, a country where perhaps 170,000 women since 1980 had travelled overseas — mostly to England — to access abortion.

The incident led to a shift in the discourse around abortion law reform, but political parties still feared taking on powerful conservative interests by publicly backing liberalisation in that heavily Catholic country. Making reform even more difficult was the fact that like Australia, Ireland’s constitution can only be changed by referendum.

The impetus to move forward partly came from an innovative new institution: a citizens’ assembly.

Established after the 2016 election, the assembly comprises 99 members randomly selected to be representative of society, plus a chairperson.

The assembly has now considered issues such as fixed-term parliaments, gender equality, climate change and ageing. But the first topic referred to it by the Dáil (Irish lower house) was abortion.

Assembly members sat over five weekends, hearing from groups for and against reform, including experts in medicine, ethics and the law, as well as women with lived experience of needing access to emergency abortions. Much of this was streamed online.

Over 13,000 submissions were made by members of the public to the inquiry.

Ultimately, a majority of the assembly voted to change the current constitutional amendment banning abortion, and supported giving the Oireachtas (Irish houses of parliament) the power to legislate instead. A majority also supported unrestricted abortion access, with different groups supporting different gestation time limits.

In May 2018, the Irish people voted in a referendum in similar numbers to those seen in the assembly, with 66% supporting removal of the constitutional ban. This was followed by legislation to allow abortion on request up to 12 weeks, or where there is a risk to the life of the mother or baby.

It’s a major shift — and one made easier for politicians worried about re-election by fostering a sustained public debate and handing over some responsibility to citizens.

Although the assembly does not make policy itself — the government is only required to respond to their reports — there is significant legitimacy in their conclusions, making it easier for government to adopt recommendations that might otherwise prompt acrimony.

Yet we know citizens’ juries don’t always deliver the government what it wants, and can descend into polarised debate themselves. This is what happened in South Australia’s deliberative process around nuclear waste, where participants ended up stacking votes.

So how can citizens’ juries and other forms of deliberative democracy be done well?

The keys to successful deliberation

At a time when anti-democratic forces are gathering strength, deliberative democracy — which includes citizens’ juries, assemblies, and many other approaches — could be a useful tool for restoring public trust and improving government decision-making.

Interestingly, Australia — alongside Germany — has been the biggest user of deliberative processes thus far, according to a recently published OECD report on deliberative democracy.

Across OECD member countries, citizens’ juries have been used to address many policy questions, with the most common being urban planning, health, the environment, infrastructure, and strategic planning. Local government is the most common place to find deliberative processes, though governments of all levels have tried them out.

The fact that citizens’ juries and assemblies have been around for a while now means there’s a decent amount of evidence about what makes them work.

Firstly, there’s the choice of issue. The evidence suggests deliberative processes work well for the following types of problems:

1. Values-driven dilemmas. Representative deliberative processes encourage active listening, critical thinking and respect between participants. This creates an environment where discussing thorny ethical questions lacking clear-cut answers can happen in a civil way, enabling participants to find common ground.

2. Complex problems that require trade-offs. Citizens’ juries provide participants with time to learn, reflect, and deliberate, as well as access to a wide range of evidence and expertise from officials, academics, think tanks, advocacy groups, businesses and other stakeholders. This enables citizens to grapple with the complexity of decision making and consider the legal, regulatory and budgetary constraints surrounding an issue.

3. Long-term issues that go beyond the short-term incentives of electoral cycles. Many public policy issues are fraught as their benefits are only reaped in the long term, while costs are incurred in the short term. Removing politicians and their fixation on elections from the equation allows participants to consider issues from the perspective of the public good.

To ensure deliberative processes result in useful recommendations and meaningful opportunities for citizens to shape public decisions, the OECD recommends they incorporate the following principles:

  • Purpose. The task should be clearly defined as a question linked to a public problem.
  • Accountability. The commissioning authority should publicly commit to responding to or acting on recommendations in a timely manner and should monitor and regularly report on the progress of their implementation.
  • Transparency. Anyone should be able to easily find the following information about the process: its purpose, design, methodology, recruitment details, experts, recommendations, the authority’s response, and implementation follow-up. Better public communication should increase opportunities for public learning and encourage greater participation.
  • Representativeness. Participants should be a microcosm of the general public; this can be achieved through random sampling from which a representative selection is made to ensure the group matches the community’s demographic profile.
  • Inclusiveness. Efforts should be made to ensure inclusiveness, such as through remuneration, covering expenses, and providing or paying for childcare or eldercare.
  • Information. Participants should have access to a wide range of accurate, relevant, and accessible evidence and expertise, and have the ability to request additional information.
  • Group deliberation. This entails finding common ground, and requires careful and active listening, weighing and considering multiple perspectives, every participant having an opportunity to speak, a mix of formats, and skilled facilitation.
  • Time. For high-quality processes that result in informed recommendations, participants should meet for at least four full days in person, as deliberation requires adequate time for participants to learn, weigh evidence, and develop collective recommendations.
  • Integrity. To help ensure the integrity of the process, it should be run by an arms’ length co-ordinating team.
  • Privacy. There should be respect for participants’ privacy to protect them from unwanted attention and preserve their independence.
  • Evaluation. Deliberative processes should be evaluated against these principles to ensure learning, help improve future practice, and understand impact.

Institutionalising deliberation

Creating a permanent citizens’ assembly — as in Ireland — can bolster democracy and enable the improvement of engagement processes through continuous learning, says the OECD.

The think tank also suggests creating rules requiring citizen engagement under certain conditions, or allowing citizens to push for a citizens’ assembly on specific issues if they can collect enough signatures.

Formalising processes, such as a database to facilitate random selection of participants, can also make deliberative processes easier, cheaper, and more effective.

“A next step would be for employers to provide paid leave to participate, as with criminal juries, recognising the value of citizens’ time and input into policy making,” argues the OECD.

Institutionalising deliberation requires adequate funding and public service capacity, so governments should consider establishing an office with responsibilities for:

  • Setting good practice standards
  • Advising decision makers considering using deliberation in their work
  • Building government knowledge by training civil servants
  • Providing independent monitoring and evaluation of ongoing processes and their impact
  • Managing dedicated budgets for deliberative processes
  • Investing in civil society organisations
  • Regularly reporting findings from deliberative processes to government and parliaments.

“In this time of complex change, current democratic and governance structures are failing to deliver,” says the OECD.

“When conducted effectively, deliberative processes can lead to better policy outcomes, enable policy makers to make hard choices and enhance trust between citizens and government.”

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