You want a constitutional convention? This is what you need to think through first

robert_hazell (1)

In the run up to the Scottish independence referendum, and its aftermath, calls have grown for a constitutional convention to discuss further devolution, as well as wider constitutional reforms. Yet most constitutional conventions around the world have failed to deliver subsequent reform. Careful thought therefore needs to be given to the purpose, scope and terms of reference, timetable, selection of members, budget, staffing and links to government and Parliament if a convention is to have any chance of success. Robert Hazell addresses each of these issues in turn.

Purpose

A constitutional convention is a group of people convened to draft a constitution (like the drafters of the American constitution in Philadelphia in 1787), or to consider specific constitutional reforms. In recent times conventions have come to include ordinary citizens, like the Irish Constitutional Convention which met from 2012 to 2014. A convention may be established for several reasons:

  • To build cross party consensus for further constitutional reforms
  • To harness expert opinion to chart a way forward
  • To develop a more coherent overall reform package, rather than further piecemeal reforms
  • To bring in ideas from outside the political elite
  • To create greater legitimacy and support for the convention’s proposals
  • To generate wider participation through innovative methods of public engagement.

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UK constitutional reform: No means Yes?

Meg-Russell

Although a Yes vote would have meant a very obvious change to the existing constitutional structure of the UK, the consequences of the No vote will still be complex and profound. The outcome has already put contentious issues such as the West Lothian question back on the agenda, writes Meg Russell.

This article originally appeared in the Observer. A version is available on the Guardian website.

The constitutional consequences of a Yes vote in Scotland would have been momentous, leading to months – possibly years – of fraught negotiation with uncertain consequences. But the consequences of no for the rest of the UK may, paradoxically, be even more complex and profound.

Since establishment of the Scottish Parliament in 1999 the ‘West Lothian question’ – Scottish MPs voting on legislation not affecting Scotland – and wider ‘English questions’ have rumbled on but rarely reached centre stage. They were temporarily sidelined by announcement of the independence referendum. Had Scotland voted yes, their urgency would have declined. Controversies over Scottish MPs at Westminster would clearly have ended with their departure, however painful that might have been.

A No vote was always going to put these issues back on the agenda, particularly because the status quo ante was not an option. Under the Scotland Act 2012, a No vote was already to hand substantial new powers to the Scottish Parliament, particularly over taxation. During the campaign, political leaders went far further, promising additional devolved powers including on welfare and tax. This has angered Conservative MPs.

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Constitutional reforms permitting private sector participation in Mexico’s oil production are proving controversial but necessary

In December 2013, Mexico’s Congress approved amendments to articles 25, 27and 28 of its constitution, ending the national oil company’s 53-year monopoly over the country’s hydrocarbons. The company, PEMEX, is now permitted to associate with the private sector in the extraction and refinement of oil, and private companies are able to participate in the production and commercialisation of electric energy. The controversial reforms were framed by ideological discussions, misunderstandings and public concerns about the future of the country. The PRD (the Mexican left) fought hard to block the changes, even blocking access to the Legislative chamber to prevent members of Congress from discussing the reform. Despite the controversy, a coalition composed of PRI and PAN MPs was able to change the articles, which were previously considered to be “untouchable”.

President Enrique Pena Nieto has maintained that the amendments will continue the national ownership of hydrocarbons, while allowing the company to seek alternative sources of national and international funding that it desperately needs to continue operating. Nevertheless, the public fears that it is a step backwards and a clear indication that the PRI (the hegemonic party that governed the country for more than 70 years) has returned to the presidency with the same privatisation style that characterised the years leading up to the transition to democracy, a strategy that resulted in a major economic crisis in 1994. So what do these reforms mean in real terms for the country? Why are they so controversial?

In March 1938, President Lazaro Cardenas gave a radio speech announcing Mexico’s oil reserves were to be nationalised, seizing it from the hands of international companies. The move was welcome in a country still suffering from the aftermath of a civil war and struggling to consolidate its governmental institutions. Numerous demonstrations supporting the initiative took place and people donated what they could to “pay the oil rescue”. However, Mexico didn’t have enough money to indemnify the international companies and the expropriation generated strong international pressure to boycott nationalisation. It wasn’t until 1947 that the debt was finally paid.

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Is Britain a Christian country and, whatever the case, what then?

Unusually, British politicians have been talking about religion this Easter.

(i) Events, dear Boy

First, the Communities and Local Government Secretary, Eric Pickles, whose Department leads on faith relations, and then the Prime Minister, David Cameron, both averred that Britain was still a Christian country – Mr Pickles, with customary brutality, reminding us that there is an established Church and advising people to ‘get over’ that fact. A large number of worthies then wrote jointly to the Daily Telegraph (editorially sympathetic to establishment) to challenge ministers’ views, labelling them as both false and divisive in a pluralised society of multiple belief and unbelief. This was countered by a joint letter disagreeing

This lukewarm pot was then stirred by the Deputy Prime Minister and leader of the Liberal Democrat party, Nick Clegg. Out of the blue in a radio programme, he floated the thought that the day was coming when church establishment should be stood down for everyone’s benefit, including that of the Church of England. The Prime Minister and others immediately rejected this view – long Liberal Democrat policy deriving from that party’s ancient Christian Nonconformist roots.

Understandably, the Archbishop of Canterbury, Justin Welby, head of the church established in England (and long ago disestablished in Ireland and Wales) felt moved also to comment – no tablets of stone, just a blog. Acknowledging that church attendance had greatly declined, he maintained that nonetheless much of the nation’s life had been ‘shaped and founded on Christianity’, and that ‘in the general sense of being founded on Christian faith, this is a Christian country’. Characterising objectors as atheists, he pointed to Muslim, Hindu and Sikh support for the Prime Minister’s remarks. This claim, which has been called ‘Anglican multifaithism’ [N. Bonney (2013) Monarchy, religion and the state], is a trope employed by Anglicans to assume a new role and purport to speak for the interests of all religions. On offer is an implied conduit into government valued apparently by a number of non-Christian faiths but not willingly by minority Christian denominations.

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SCOTS DEGREES OF SEPARATION

Earlier this year I wrote on this Blog about various aspects of ‘Scotland and the UK’ here, here and here.  Now, the crucial question over the next two years is a superficially simple one: “What does ‘Scotland as an independent country’ mean”?

It should be a truism that voters at an election or referendum should know as much as possible what/who they are being asked to vote for.  This is essential for democratic and legitimacy reasons. Yet, so far, this doesn’t seem to be the case in the 2014 Scottish independence referendum.  It seems that qualifying Scottish voters will be asked simply to agree or disagree with a general, almost abstract, ‘in principle’ proposition, rather than to support or not support a particular constitutional ‘settlement’, as in earlier such referendums in 1975 and 1997.

What would independence mean?

The main – for most potential referendum voters, the only – ‘independence’ on offer is that of the SNP.  Some argue that this form of independence is in reality a strong variant of ‘devo-max’ (‘devo-extramax’? ‘independence-lite’?), because of all the proposed continuing links to UK institutions and policies etc..  Does this matter?

In some sense, all independence in the modern world is relative, especially in practical political, economic and military terms.  The present UK’s sovereignty, practical as well as legal, is less than pure and total, because of membership of bodies such as the EU, NATO and UN, for example.

Again, it can be argued that the SNP’s evolving version of Scottish independence is driven by the realpolitik of winning over voters to the YES camp in 2014, rather than by some theoretical or romantic ideal of independence.  It fits in with the SNP policy of gradualism, presenting post-2014 independence as simply the final, painless step in the devolution journey, completing the process begun in the late 1990s of the creation and development of a Scottish Parliament (and accompanying Government).  In this scenario, many voters may not even realise the political and constitutional significance of the referendum.

Yet, notwithstanding any camouflaging words and policies, at some point there must be a Rubicon to be crossed when Scotland becomes, and is recognised as such, an independent state.  I’m not an international lawyer, but there are at least two relevant aspects of independence here, where Scotland’s status becomes definitively more than devolution, federalism or the like, still ultimately part of a wider independent state, ie the UK:

  • International recognition of independent statehood: it is not just a question of whether Scotland should itself belong to bodies such as the EU, UN or NATO, but whether it can be, is qualified to be, a member of such bodies;
  • Legislative supremacy: the post-independence Scottish Parliament, not the Westminster Parliament, would be the repository of ultimate legislative power, whether or not limited by any ‘higher’ written constitution or by external supranational bodies like the EU.

Pathways to independence

In theory there are various ways in which Scots can have the opportunity of giving ‘informed consent’ to independence.  Whether or not some of these are politically practical or realistic is a different question.

While SNP gradualism implies a degree of ‘independence-by-stealth’ in winning a referendum, there would presumably also need to be some parallel narrative or ‘creation myth’ which is more heroic, resonant and visible, recognising and glorifying that crossing of the independence Rubicon.  This may require, however symbolically if not (in terms of the various relevant jurisdictions) legally, some form of ‘Treaty of Disunion’ as the constitutional bookend to the 1707 Treaty/Acts of Union.

From the UK point of view, Scottish independence would presumably be achieved legally by an Act of the UK Parliament, whether or not accompanied by, or incorporating, any separate ‘treaties’ or other written agreements.  In Scottish domestic symbolic, as well as international law, terms, such a Treaty of Disunion would be made between ‘independent’ states, rather than between a sovereign state and one of its component parts, and it would be this, and any accompanying ‘declaration of independence’ and Constitution, which would be regarded within Scotland as the crossing of the independence Rubicon.

What role, if any, would or should the Scottish people have in any such process?  If there is no pre-referendum detailed elaboration of what ‘independence’ actually means, other than what is said by the various parties and any official umbrella YES/NO groupings, there is a democratic case for a further recourse to the people, by way of a second referendum or otherwise, once a detailed independence deal is finally negotiated, .

If that is not feasible, then there is an argument for some form of ‘constitutional convention’ where the people’s representatives can discuss and ‘decide’ on the terms of Scottish independence.  This would be in tune both with recent Scottish constitutional practice, and with more general modern trends towards participative democracy.  This could be held after a YES vote, and any such ‘settlement’ can then form the basis of whatever constitutional mechanisms (treaties, legislation etc) are used to achieve independence.  It could even be held before the 2014 referendum, so that voters can then see, in detail, the independence package they are voting about.  Scotland has some, albeit unofficial, experience of constitutional conventions; the Commons Political & Constitutional Reform Committee under Graham Allen is currently holding an inquiry on this very subject, and the McKay Commission on the West Lothian Question can more usefully spend its valuable time and expert resources in examining how inter-parliamentary relations with the UK can positively contribute to any such convention and independence-pathway process.

The role of general elections?

There is also the fact of upcoming elections, not just the Holyrood elections in May 2016, but the Westminster elections in May 2015.  If there is a YES vote in late 2014, what would be the purpose, even the point, of the UK general election in Scotland mere months later?  Never mind the parliamentary and governmental impact of the departure of all Scottish MPs at some future date during that 2015 Parliament, would these MPs be, and be seen to be, mere lame ducks, or will they be regarded (if only by themselves) as the UK-level supervisors of the independence process?

And what of the 2016 Holyrood election?  Is the idea that it will be somehow transformed into the first elections to a sovereign Parliament of an independent Scotland, or will they be the last elections to a devolved Parliament within the UK, a Parliament largely devoted to negotiating and finalising a independence settlement?

Arguably, either or both these elections could be utilised to contribute to some form of constitutional convention, albeit a post-referendum one.  Either formally or otherwise, the Scots MPs elected in 2015 could form part of such a convention, perhaps with the existing MSPs and, if thought desirable or necessary, other representatives of Scottish civil society.

Time is short

The late 2014 referendum may seem a long way in the future, but, in constitutional terms, time is actually very short, especially when considering such novel, complex and highly sensitive, even incendiary issues such as those discussed in this blogpost.  The Scottish referendum electorate – as well as ‘expatriate’ Scots, and everyone else in the rest of the UK – do not just deserve to hear the views of all interested parties, but should also start making known their own views on their constitutional future NOW.

Judicial Independence Around the World: Nepal & Morocco

In a previous blog we looked at judicial independence in Papua New Guinea. Now, we turn our attention to judicial politics in Morocco and also in Nepal. The two nations are both facing constitutional upheaval, Nepal is currently ‘in-between Constitutions’ and Morocco has been in the process of wide-ranging reforms since July 2011, when a new constitution came into force.

Nepal: The caretaker Maoist government and opposition parties have recently been struggling to agree a new Constitution. Indeed, the Constituent Assembly was dissolved without a new Constitution in place. This was good news for Supreme Court judge Rana Bahadur Bam who was the subject of impeachment proceedings at the time – without a legislature the impeachment had to be abandoned. Mr Bam was allowed to remain as a sitting judge.

Rana Bahadur Bam had been accused of taking bribes in 2010 from suspects charged with abduction in exchange for giving them light sentences.

On 31st May 2012 gunmen on motorcycles attacked Mr Bam’s car as he left the Bagamukhi temple to drive to court in Kathmandu. Mr Bam was shot six times and later died in hospital.  Without a Constitution it could be argued that the judiciary are truly independent. However, without a legislature (to make law) and an executive (to enforce that law) the judiciary are left dangerously exposed to those in society who care little for justice, as was evidenced by the murder of Judge Bam.

Morocco: In May 2012 the Club of Moroccan judges, which represents more than half of the judiciary, launched a campaign to demand greater judicial independence. The Moroccan royal family and government currently have control of judicial promotions and salaries.

Approximately 2,900 judges then wore a red armband for a week as a form of protest.

Moroccan Judge Red Protest Armband

A red armband is tied to the robe of a Moroccan judge as a form of protest.

King Mohammed VI announced a new government panel, called the ‘supreme body for national dialogue on the reform of justice’. The panel is led by the Minister of Justice, Mustapha Ramid, and comprises forty members (including eight women). The aim is to draft a national judicial charter.

The panel did not get off to the most auspicious of starts when Taieb Nassiri (a former justice minister) suffered a heart attack at one of the panel’s first meetings. On a more positive note, the panel have already established a work schedule – seven topics to discuss and visits to ten cities, starting in Rabat on 7th & 8th June.

King Mohammed VI noted that “the independence of the judiciary, relative to the legislative and executive branches” is specified in the constitution. The monarch is the guarantor of judicial independence (see Article 107 Moroccan Constitution 2011).

Choosing the monarch as guarantor for judicial independence is an interesting concept. On one hand selecting the monarch is a wise choice; it provides a way to protect the judiciary without overtly politicising them – particularly as the integrity of the Monarch is taken as ‘inviolable’ by Article 46 Moroccan Constitution 2011.

At the same time, won’t the wave of democrats that have emerged in the Maghreb since the Arab Spring be troubled by the fact that the unelected judiciary is guaranteed by an unaccountable King?

Constitutional Reform in the Queen’s Speech

Constitutional reform featured strongly in Queen’s Speech today, setting out legislation for the coming session of Parliament. The Unit dissects… 

Lords Reform Bill

This faces massive opposition in both Houses and may fail. The reform proposals are opposed by the Lords itself, and there is so much resistance among Conservative MPs the bill may fail to get through the Commons.

The committee stage of the bill must be taken on the floor of the Commons and could take six weeks or more. Lords reform risks being for Cameron what the Maastricht bill was for John Major: this took 23 days on the floor of the House in committee alone, and saw numerous painful rebellions. At the bill’s Second Reading the rebels will seek to defeat the programme motion on its timetabling. If they succeed, the government will lose control over timing completely – but even if they fail, the bill may still be lost.

There are numerous issues over which the plans may fall apart. Simply to win the programme motion the government may need to concede a referendum on reform, which Nick Clegg doesn’t want. But defeats in the Commons are also likely on the powers of the Lords, the proportion of elected members, the electoral system, the proposed 15 year non-renewable terms, and the presence of the Bishops. Once MPs get hold of it, the bill may suffer a death of a thousand cuts.

Crime and Justice Bill

Of most constitutional relevance are the references to judicial appointments. Appointments are to be made more transparent and more diverse. Diversity is a central issue in judicial appointments, as the principle that appointment should be exclusively on merit is regarded as sacrosanct by the judiciary and many in the legal profession. The Ministry of Justice (which recently held a consultation on appointments) is thought to be frustrated at the slow pace with which minority groups have entered the judiciary.

It will be worth watching how far along the continuum between strictly merit-based appointment and affirmative action appointments are taken.

Draft Communications Bill

The proposed legislation allows intelligence officers real time access to communications of the public without a warrant. However there is growing concern about the potential impact on privacy. Theresa May commented “no-one is going to be looking through ordinary people’s emails or Facebook posts”.  The ICO have confirmed they are monitoring the development of the legislation closely and will press for the appropriate limitations and safeguards and  former head of GCHQ Sir David Ormand has drawn attention to the potential chilling effect that may occur on the use of social media as a source of information.

Electoral Registration and Administration Bill

The draft bill was widely welcomed as a means of tackling electoral fraud, however two particular concerns have also been raised. Scrapping the legal duty to register will cause millions of voters to fall off the register, as will scrapping the 2014 canvass. The Electoral Commission have called for a major public awareness campaign.

Scottish Independence & the Rules of Succession

Both issues had special mention as being actively pursued in the next parliamentary session.

The UK and Scottish governments will start negotiating in the summer and autumn about how to legislate for the independence referendum. The UK government wants there to be a single question, just on independence; while Alex Salmond will hold out for a second question, on Devolution Max. If they cannot agree the UK government may withdraw its offer to legislate for the referendum at Westminster, throwing up the risk that any referendum authorised by the Scottish Parliament is open to legal challenge.

Changing the rules of succession to the throne is much less contentious. To give a lead to the other countries where the Queen is head of state, the UK will want to legislate soon to remove the rule of male primogeniture, that sons come before daughters, and to remove one element of the discrimination against Catholics, that any heir to the throne who marries a Catholic is removed from the line of succession. (Catholics themselves and anyone else not in communion with the Church of England will remain barred from succeeding.)