Considering a constitutional convention for Scotland

The SNP have promised that an independent Scotland will develop a codified constitution.The other main parties have suggested that a No vote is a vote for a union in which Scotland is granted greater autonomy. But how should new constitutional arrangements be decided? Alan Renwick explores the options and concludes that the recent Irish Constitutional Convention could provide a useful model.

As the hullaballoo around the local and European elections begins to fade, attention is turning back to the main event in UK politics for 2014: the referendum on Scottish independence.  We are now in the official sixteen-week campaign period and, if the last few days are anything to go by, the two sides in the debate plan to continue screeching at each other much as they did before.  The Yes camp insists that Scotland’s economy will flourish following independence while the No camp counters that numerous economic dangers lie ahead.

Whatever we think about the independence question itself, an important part of the debate ought to focus on constitutional futures.  The SNP have promised that an independent Scotland will develop a new, codified constitution.  The other main parties, meanwhile, have suggested that a No vote is not just a vote for the status quo: rather, it is a vote for a new kind of union in which Scotland is granted greater autonomy.

But how would such new constitutional arrangements be decided?  So far, we have been told little.  Yet this is a crucially important question.  The traditional option is some form of royal or independent commission.  Such commissions have been used to formulate many proposals for reform of the Union in the past – from the Kilbrandon Commission in the 1970s to the more recent Calman, Richard, and Silk Commissions.  But they are quite inadequate for any deep reconsideration of constitutional structures.  First, while they might be good at answering relatively technical questions, they are not the best fora for settling issues where values and identities are at stake.  Second, they fail to engage the public in active participation.

There have been several recent calls for a more ambitious constitutional convention.  Welsh First Minister Carwyn Jones has called for a convention comprising representatives from the Westminster Parliament, devolved parliaments and assemblies, local government, political parties, business groups, faith groups, and others.  The House of Commons Political and Constitutional Reform Committee has floated the idea of partial direct election, though it appears to favour, like Carwyn Jones, a convention or representatives appointed from various existing organs.

Such proposals are a step up from a commission of the great and good.  But they are still unsatisfactory.  They still keep ordinary members of the public at a distance.  They are also likely to be beholden to the institutional interests of the people who comprise them.

It would be much better, I suggest, to set our sights higher.  In designing constitutional reform processes, we should seek to satisfy five criteria:

  1. The process should focus on the good of all rather than the interests of particular individuals or groups
  2. The quality of reasoning should be high
  3. There should be opportunities for genuine public participation
  4. The process and its outcomes should have popular legitimacy
  5. The process should have political legitimacy, in the sense that the politicians with the power to shape the fate of any proposals should feel a sense of buy-in to the process.

As I have suggested, the traditional commissions and appointed conventions that have been mentioned so far score poorly against these criteria.  A directly elected assembly might look better as here, at least, the public have a direct say in who represents them.  The recent experience of Iceland’s Constitutional Council provides a good example of a directly elected assembly that deliberated effectively, remained independent of the interests of those in power, and commanded significant public respect.

But the Icelandic model is unlikely to work in the UK.  First, it was adopted in Iceland only in the face of catastrophic economic and political crisis; in the absence of such crisis, there seems no prospect that British politicians will consent to the creation of such a rival institution.  Second, direct election worked in Iceland only because parties were excluded from the competition.  It would be much harder to hold a successful non-partisan election in the UK, where the electorate is more than a hundred times larger.  Third, much as Iceland’s Constitutional Council worked well in itself, nothing has yet come of its proposals: politicians, who felt excluded from the process, have refused to enact them.

Some of these problems can be addressed through a more innovative model.  Recent electoral reform processes in Canada and the Netherlands have used citizens’ assemblies: assemblies made up of citizens selected at random (though with the right of refusal) from the electorate.  These assemblies have performed remarkably well: as research has shown, they have been independent of institutional interests; they have shown a high capacity for quality deliberation on complex subjects; they have allowed direct public participation; and they have commanded public respect.  But they share one drawback with the Icelandic model: lack of buy-in among the politicians.  As a result, not one of the citizens’ assemblies yet held has led to actual reform.

Yet one final model does seem able to tick all the boxes.  This is the model of the 2013–14 Irish Constitutional Convention.  As recently outlined to the Constitution Unit by its Research Director, Professor David Farrell, the Irish Constitutional Convention had a mixed composition: two thirds of its members were randomly selected citizens on the citizens’ assembly model, while one third were politicians appointed by the various parties.  There were concerns before the Convention began its work that this mix would not work because the politicians would dominate and true deliberation would be stifled.  But this did not occur: in fact, careful facilitation ensured that all members could contribute effectively.  Though the schedule was excessively tight, quality debate did occur.  Confidence in the process among the political commentariat grew as time went on.  And, crucially, politicians felt a sense of buy-in to the Convention’s proposals: the government has already promised several referendums on the proposals, and it appears likely that at least some real change will take place.

If referendum campaigners want to flesh out a positive vision for Scotland’s future, therefore – whether that is inside or outside the Union – they would do well to start with a commitment to a constitutional convention based on the Irish model.  There are many devils in the detail that would need to be worked out to establish such a convention.  But the basic pattern is clear.  It would show that words about Scotland’s future constitutional arrangements are meaningful.  It would also show commitment to breaching the chasm that today separates citizens from their supposed representatives. It might even open a path to the revitalisation of our democracy in the future.

Dr Alan Renwick is Reader in Comparative Politics and Acting Head of the Department of Politics and International Relations at the University of Reading.  His pamphlet, After the Referendum: Options for a Constitutional Convention, was published by the Constitution Society in April.

View our blog summarising David Farrell’s recent talk on the Irish Constitutional Convention at the Constitution Unit.

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