After the Referendum Options For a Constitutional Convention by Alan Renwick

8/12/2019 After the Referendum Options For a Constitutional Convention by Alan Renwick

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Report

Alan Renwick

Afer the ReerendumOptions For aConstitutional Convention


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AFER HE REFERENDUMOPIONS FOR A

CONSIUIONAL CONVENION

Alan Renwick


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First published in Great Britain in 2014 byTe Constitution Society

op Floor, 61 Petty FranceLondon SW1H 9EUwww.consoc.org.uk Te Constitution Society

ISBN: 978-0-9928904-0-7

All rights reserved. Without limiting the rights under copyright reserved above, nopart o this publication may be reproduced, stored or introduced into a retrievalsystem, or transmitted, in any orm or by any means (electronic, mechanical,

photocopying, recording or otherwise), without the prior written permission o boththe copyright owner and the publisher o this book.


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3AFTER THE REFERENDUM

Contents

About the Author 5

Summary 6 Part 1: Constitution-Making: Te Building Blocks 6

Part 2: Constitution-Making around the World 8

Part 3: How Should the Options be Judged? 9

Part 4: Designs or Constitution-Making in the UK 10

Acknowledgement 13

Introduction 14

Part 1: Constitution-Making: Te Building Blocks 17

1.1What are the Purposes o the 17Constitution-Making Process?

1.2 Who is Represented? 19

1.3 What Basic Structures are Available? 21

1.4 Who can Influence the Constitution-Making 25Bodys Deliberations?

1.5 What are the Constitution-Making Bodys 26Operational Procedures?

1.6 What Happens to the Proposals that are Made? 27


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AFTER THE REFERENDUM4

Part 2: Constitution-Making around the World 30

2.1 Expert Commissions: Kilbrandon, Richard, 31Calman, and Silk

2.2 Negotiation among Leaders: Canada and 35Northern Ireland

2.3 Indirectly Elected Assembly: Te Convention 40on the Future o Europe

2.4 Civil Society Convention: the Scottish 48Constitutional Convention

2.5 Icelands Elected Constitutional Council 57

2.6 Citizens Assemblies in Canada and the Netherlands 66

2.7 Mixed Case One: Te Australian Constitutional 74Convention o 1998

2.8 Mixed Case wo: Irelands Constitutional Convention 83

Part 3: How Should the Options be Judged? 94

3.1 Reason over Interest and Passion 95

3.2 Te Quality o Reasoning 96

3.3 Inclusivity as a Good in Itsel 97

3.4 Public Legitimacy 99

3.5 Political Legitimacy 101

Part 4: Designs or Constitution-Making in the UK 104

4.1 Purposes 104

4.2 Who Should be Represented? 106

4.3 Basic Structures 107

4.4 Agenda and Influence 120

4.5 Operational Procedures 121 4.6 From Proposals to Decisions 123

Conclusion 124


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About the Author

Dr Alan Renwick is Reader in Comparative Politics at theUniversity o Reading. He writes widely on constitutional and

electoral reorm in the UK and around the world: his booksinclude Te Politics o Electoral Reorm, published by CambridgeUniversity Press in 2010, and A Citizens Guide to ElectoralReorm, published by Biteback in 2011. His current researchprojects ocus on patterns o electoral reorm across Europe sincethe 1990s and on the development o democratic reorm debatesin the UK since 1945.


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Summary

Whatever its result, the Scottish independence reerendum on18 September 2014 will raise important constitutional questions.

I Scotland votes or independence, the new country will needa new constitution and the rest o the UK will need to rethinkits own internal power structures. I, as currently appears morelikely, Scottish voters choose to remain in the United Kingdom,there will still be much pressure to rethink the devolutionsettlement: Scotland and Wales will in any case receive urtherpowers over the coming years, and this will only heighten

existing tensions within the structure o the Union. Te positivecase or a national conversation on how to revitalize the Unionwill be strong.

Tis paper sets out how a constitutional convention or the UKmight best be designed. It is divided into our parts. Part 1setsout the key issues that need to be thought about when a process oconstitutional design or reorm is being devised. Part 2 explores

the main options through detailed case studies rom the UK andaround the world. Part 3sets out criteria by which the optionsought to be judged. And Part 4 draws out implications and offersrecommendations on how a constitutional reorm process in theUK might best be structured.

Part 1: Constitution-Making: Te Building Blocks

Part 1 sets out six key issues that need to be thought about whena process o constitutional design or reorm is being devised:


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1. What is the purpose o this process? Is a wholly newconstitution being devised, is the existing constitution beingcomprehensively reviewed, or is the review restricted tospecific aspects?

2. Who is represented in this process? It should be taken asa given that the people in a democracy are sovereign andtheir representation is thereore essential. But who are thepeople? Are there particular groups that especially deserve

or require representation? And to what extent is there a caseor ollowing the non-representative principle that expertiseshould count?

3. What is the basic structure o the body or set o bodiesthat debates the options and makes recommendations? Sixpossible pure structures are identified. At the least inclusiveend o the spectrum are expert commissions. Tese are

ollowed by negotiations among political leaders, indirectlyelected assemblies, and civil society conventions. Directlyelected assemblies, as their name suggests, integrate citizensmore directly into the process. Citizens assemblies go stillurther be removing the intermediation o politicians. Finally,these pure models can be mixed, either by establishingconstitution-making bodies with mixed memberships orby creating processes that incorporate multiple bodies odiffering composition.

4. Who can influence the constitution-making bodysdeliberations? In particular, who sets its agenda and withwhom does it consult, on what basis, through the course oits work?

5. What are the bodys operational procedures? Most

importantly, how does it make decisions: by simple majority,qualified majority, consensus, or some other principle?


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6. What happens once the constitution-making body hasmade its recommendations? Does that body have thecapacity to enact its recommendations into law itsel? Doesit merely recommend to parliament? Is a reerendum held?Do the recommendations automatically go to a reerendumor can parliament decide afer the recommendations havebeen made?

Part 2: Constitution-Making around the World

Part 2 takes the basic structures identified in Part 1 and exploresthem in urther detail through particular examples rom the UKand around the world. Te basic structures and the cases used toexplore them are the ollowing:

1. expert commission: the Kilbrandon Commission o

196973 and the more recent Richard, Calman, and Silkcommissions, all tasked with exploring issues to do withdevolution;

2. negotiation among leaders: the negotiations in Canada thatled to the Meech Lake Accord o 1987 and the CharlottetownAccord o 1992, both o which sought (unsuccessully) toresolve the constitutional position o Quebec within the

ederation; and the negotiations in Northern Ireland thatled to the signing o the Belast Agreement in 1998;

3. indirectly elected assembly: the Convention on the Futureo Europe o 20023, which drafed the Constitution orEurope that was rejected at reerendum by voters in Franceand the Netherlands and subsequently abandoned (thoughimportant elements were incorporated later into the Lisbon

reaty o 2007);


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4. civil society convention: the Scottish ConstitutionalConvention o 198995, which paved the way or thedevolution settlement in Scotland (and, indirectly, in Wales)that was enacted by the Blair government ollowing itselection in 1997;

5. directly elected constituent assembly: Icelands ConstitutionalCouncil o 2011 the only example in the world o a pureelected constituent assembly operating in parallel to the

regular legislature in an existing, consolidated democraticpolity;

6. citizens assembly: the assemblies in British Columbia in2005, the Netherlands in 2006, and Ontario in 20067, allo which comprised ordinary citizens chosen at random(though those initially selected could choose whether toaccept the invitation or not), and all o which were asked to

debate possible changes to legislative electoral systems;7. mixed assembly: the Australian Constitutional Convention

o 1998, o whose members hal were directly elected andhal were appointed by the parties or the government; andIrelands Constitutional Convention o 201314, two thirdso whose members were ordinary citizens chosen on themodel o the citizens assemblies, while one third were

politicians chosen by their parties.

For each o these case studies, the basic story o the case is set outand an assessment o its operation is offered.

Part 3: How Should the Options be Judged?

Part 3 considers the most important criteria that should be

used in order to judge the various options or the design o aconstitution-making process. Five such criteria are proposed:


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1. the process should oster a debate that is based upon reasonrather than interest or passion: that is, it should be designedto make it more likely that participants will ground theirpositions in considerations o general principle rather thaneither vested interest or emotional reaction;

2. thisreasoning should be o high quality: participants shouldhave a good understanding o the options available andthe strengths and weaknesses that each may reasonably be

considered to have;

3. deliberations over the constitution should be inclusive:in a democratic society, it is essential to ensure that allparts o that society are airly represented and that theirparticipation should be as active as possible;

4. constitution-making processes should be designed tomaximizepublic legitimacy: members o the public shouldhave confidence in the processes that are established andthe recommendations that are produced;

5. constitution-making processes should also be designed toachievepolitical legitimacy: politicians in positions o power(in both government and opposition) should eel connectedto the process and bound to take the recommendations o aconstitution-making body seriously.

Part 4: Designs for Constitution-Making in the UK

Te final part o the paper draws together the lessons rom thepreceding parts or the design o a constitution-making processin the UK. It is structured around the six key aspects o such aprocess that were identified in Part 1.

1. It is not or this paper to recommend the basicpurposes o aconstitution-making processin the UK: that will be decided,


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in the first instance, by Scottish voters in the reerendumin September and, subsequently, by democratically electedpoliticians. In order to ocus the discussion, the remaindero Part 4 concentrates on what currently appears to be themost likely reerendum outcome: a vote against Scottishindependence. In that scenario, the purpose o constitution-making will be to review and reviviy the structure othe Union.

2. Te core body that deliberates options and makesrecommendations should represent the people o the UK as awhole in proportion to population. It should be designed toensure that politicians eel directly included as well.

3. Te basic structureo this body should be modelled on therecent Irish Constitutional Convention: that is, a mixedmodelshould be adopted, including a majority o ordinary

citizens chosen at random (though with the opportunity orthose who are initially invited to choose whether to acceptthe invitation) and a minority o politicians chosen by theirparties. Te evidence that we have suggests that such a bodycould cope with the demands that would be put upon it inthe UK context and that it would ulfil the five criteria setout in Part 3 better than any other option.

4. Te agenda o this body should be set flexibly, so that it canconsider not only what the various units o governmentshould be within the UK and what powers they should have,but also any other aspects o the constitution that may beaffected by decisions on the structure o the Union. Teconstitutional convention should consult widelyin the courseo its deliberations. In particular, there is a strong case oralso establishing short-lived deliberative ora in particular

regions that can offer guidance to the main convention.


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5. Te operational procedures o the convention should bedecided so ar as possible by the convention itsel. Early onin its deliberations, it should seek broad internal consensuson whether its decisions will be made by simple majority orby qualified majority across regions or by less ormalizedprocedures. A UK constitutional convention would have acomplex agenda. It would need time to work through thisagenda and it would need to draw on expert guidance as

well as inclusive consultation. Implications or the durationo the convention, the pattern o its meetings, and thecompensation given to members or their time would needto be thought through careully.

6. Te legislation establishing the convention should alsocommit the government to putting the conventions proposalsto a reerendum. Tis reerendum might include one or more

questions, depending on the conventions recommendations.Tese questions should be worded ollowing the advice othe Electoral Commission. Te decision threshold in thisreerendum in particular, whether majorities should berequired in the nations and regions as well as across the UKas a whole should be determined by the constitutionalconvention itsel.

A constitutional convention o the orm proposed wouldbe unique and there is no guarantee that it would succeed.Nevertheless, all the evidence that we have suggests it would havethe best prospects o ostering a serious and inclusive discussiono the uture o the Union that would engage public opinion,draw in the political establishment, revitalize the structure o theUnion, and revive the health o the democratic system. Tesewould be very considerable gains i they can be realized.


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Acknowledgement

Substantial parts o this report draw on research undedby the Nuffield Foundation through grant OPD/38736, on

Political Reorm in the UK: Te Evolution o Debate. AlanRenwick is deeply grateul to the Nuffield Foundation or itsgenerous support.


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Introduction

Scotland votes later this year on whether to break ties with therest o the United Kingdom and become an independent country.

Whether Scots vote Yes or No, the reerendum will generatea need or careul thought about major constitutional questions.In the event o a Yes vote, Scotland will need to draf its ownnew constitutional structure; there will also be strong reason orthe remainder o the UK to consider implications or its owngovernance. Even in the case o a No vote, the status quo willnot be an option. Further powers particularly, tax-raising

powers will devolve to Scotland in the coming years under theScotland Act o 2012. Pressure to move urther to some ormo devo-max will be strong. Additional devolution to Wales islikely too, ollowing the recent reports o the Silk Commission.In light o all o this, the West Lothian Question will increasinglydemand an answer, with deep implications or the governance oEngland. Te time will be opportune or encouraging a nationalconversation about the uture orm o the Union.

How should debate about such matters be structured? Oneapproach would simply be to ollow the normal legislativepath, preceded by the usual green and white papers. But mostwould agree that such undamental issues should be decidedthrough more careul and more inclusive procedures. Yet thereare many options here ranging rom an expert commission toa ull-blown elected constituent assembly. And several polities

including two Canadian states, the Netherlands, Iceland,and Ireland have recently experimented with innovative


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institutions that bring ordinary citizens directly into thedeliberative process.

Tis paper sets out the issues that need to be thought about indesigning a process o constitutional deliberation, the optionsthat are available, and the actors that should be taken intoaccount when assessing the options. It is divided into our parts.Te first part looks at the building blocks o a constitution-making process: what are the many aspects o such a processabout which choices need to be made? Te second part describesvarious recent cases o constitution-making in a variety ocountries around the world. Part 3 considers how we should goabout judging the various options: what our criteria should beand what, in general terms, will need to be taken into accountwhen applying those criteria. Part 4 relates all o these points backto the UK: what would be the requisites o constitution-making

in the UK and what do these imply about how a constitution-making process might best be designed?

Te orm that a constitutional convention should best take willdepend on the result o the Scottish reerendum. Te paperdevelops specific proposals or the convention that should beassembled in the event o a No vote. It concludes that such aconvention should ollow in its composition the model o the

recently concluded Irish Constitutional Convention: it shouldcomprise a mixture o ordinary citizens selected at randomand politicians chosen by their parties. Tis orm engagesthe electorate directly and maximizes the chances that theconventions conclusions will be unbiased by vested interests,grounded in open deliberation, and taken seriously by bothvoters and politicians. Tis convention should have a broad remitto discuss the structure o the union and its broader implications.

Its deliberations should be inclusive, drawing on consultationswith experts, interested groups, and ordinary citizens around


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the country. Its recommendations should be put to the voters ina reerendum.

We cannot know or certain how such a convention wouldoperate or even whether it would succeed. But it does offer thepossibility o giving new lie and coherence to the structureo the Union and o reviviying citizens engagement with thecharacter o our democratic political system.


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Part 1: Constitution-Making:Te Building Blocks

Our first task is to identiy the aspects o the constitution-makingprocess that need to be thought about and the principal optionsthat exist with respect to each o these aspects. O course, theaspects we might consider are numerous and the possibilities orinnovation in design almost infinite. In what ollows, however,we concentrate on six key areas o choice. Te first is perhapsthe most undamental: what is the purpose o instituting aconstitution-making process in the first place? Four points then

concentrate on the design o the body or set o bodies chargedwith devising constitutional proposals. Te final point looks athow proposals are translated into final decisions: who is involvedand what roles do they play?

1.1 What are the Purposes of the Constitution-Making Process?

Constitution-making processes can have three different sorts opurpose:

1. Specific constitutional reorm. Te purpose here is toreorm some specific aspect o the constitution. TeCanadian citizens assemblies that will be described inPart 2, or example, were charged with the specific tasko proposing reorms to the provincial electoral system an aspect o the institutional structure that is ofen notormally constitutionalized, but that nevertheless has deep


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implications or the distribution o power and the structureo governance. An ongoing Constitutional Conventionin Ireland was tasked with reviewing constitutionalarrangements on eight specific points.

2. General constitutional review. Alternatively, a constitution-making body may be asked to conduct a general reviewo existing constitutional arrangements and makerecommendations or reorm across the board. In Sweden

in the 1950s, or example, the perception developed that theconstitutional structure had become rather anachronistic,and a parliamentary committee was established to look intopossible reorms. (In act, the committee concluded that thecountry would best be served by a wholly new constitutionaltext, leading eventually to the new constitution o 1974.)

3. New constitutional design. Most undamentally, procedures

can be established to create a wholly new constitutionalsystem. Such may occur at the ounding o a new state as, most amously, in the Constitutional Convention othe United States, established in Philadelphia in 1787 orwhen an existing state undergoes major regime change as in post-Franco Spain in the late 1970s, Brazil ollowingthe withdrawal o the military in the mid-1980s, and manypost-communist states in the early 1990s.

A Yes vote in Scotlands independence reerendum wouldrequire constitution-making in Scotland o the third type:the Scottish Government proposes that a wholly new writtenconstitution should be devised.1

1 Scottish Government, Scotlands Future: From the Reerendum toIndependence and a Written Constitution, 5 February 2013, available atwww.scotland.gov.uk/Publications/2013/02/8079, accessed 5 January 2014.


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In the event o a No vote, by contrast, the purposes oconstitution-making would most likely belong to the first type:while some politicians and activists would press or a generalreview o the UK constitution, more likely would be a procedureocused solely on the structure o the union. Nevertheless,constitution-making processes belonging to the first type canvary widely in terms o the extent and complexity o the issuesthey raise. Devising a new electoral system, or example, while

having some knock-on implications, is rather sel-contained. Bycontrast, working out the distribution o power and structure orelations among the various parts o the UK would involve manymore interlocking issues.

Te nature o the purposes o constitution-making will haveimplications or the appropriate design o constitution-makingprocesses. Te deeper and wider any changes extend, the greater

may be the democratic need or direct popular involvement. Tegreater also, however, may be the complexity o the issues inhand, leading to questions about whether the general public havethe capacity to make appropriately inormed decisions. Suchconundrums as this will be explored urther in Parts 3 and 4.

1.2 Who is Represented?

Te Constitution o the United States amously starts with thewords We the People. Te democratic answer to the questiono who should be represented in the process o constitutionaldeliberation is that the people who will live under the new orrevised constitutional arrangements should be represented. And,indeed, this is a very common arrangement: many constitution-making processes are conducted by bodies that (in a variety o

ways, explored in the next subsection) represent the citizens othe country or province affected.


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But ofen the situation is a little more complex than that. Treeurther possibilities need to be borne in mind.

First, who are the people? Where a relatively homogeneoussociety such as Ireland debates a national issue such asthe abolition o the Senate, it is reasonable that the peopleshould be the (adult) citizenry as a whole. I, by contrast,the polity is multi-national and the purpose o constitution-making is the delineation o relations among the nations, isit more appropriate that each nation should gain its ownrepresentation? I so, in what proportions should each berepresented? Should each nation be represented by an equaldelegation, irrespective o the nations relative sizes, as are thecountries o the European Union during intergovernmentalnegotiations? Should states be represented in proportion topopulation, as were the German Lnder in the Parliamentary

Council that wrote the Basic Law in 19489? Or should somemiddle way be pursued?

Second, while the people may hold ultimate sovereignty, greatereveryday power typically lies in the hands o politicians andexisting institutions, and at least the acquiescence o thosepoliticians and institutions is likely to be required i any change is tobe implemented. I only as an expedient, thereore, representation

o existing power-holders may be important i any constitution-making process is to succeed. Recent experience in Canada andIceland explored in detail in Part 2 suggests that politiciansmay be more likely to disavow reorm proposals where they havebeen excluded rom the process o devising those proposals.

Tird, while ew would deny today that significant constitutionalreorm processes should involve a large slice o popular

representation, there is a good argument or saying they should alsoencompass an element that is not representative at all. Constitution-


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making is both complex and consequential. It should thereore beshaped by relevant expertise. Indeed, many o the key bodies thathave devised proposals or devolution in the UK the KilbrandonCommission in the 1970s and the Richard, Calman, and SilkCommissions since 2000 have been only loosely representativebodies: their members have been chosen, in addition, or theirability to orm considered judgements on the basis o large bodieso resh evidence. Recent popular assemblies, such as those in

Canada, Iceland, and Ireland, have operated alongside mechanismsdesigned to ensure that expert voices were heard.

1.3 What Basic Structures are Available?

Even once the issue o who is to be represented has been resolved,the question o howthey should be represented has many possibleanswers. Six basic types o composition can be identified amongconstitution-making bodies, though the boundaries betweenthese are in practice sometimes blurred. A seventh category omixed arrangements can also be added.

1. Expert commissions. Most major constitutional reorms inthe UK in recent decades have been preceded by detailedinvestigation by a commission o individuals selected, atleast in part, or their expertise or their capacity to develop

expertise. As noted above, the Kilbrandon, Richard, Calman,and Silk Commissions have all examined devolutionproposals though the devolved assemblies created afer1997 were not the product o such processes. Similarcommissions addressing other topics have included theJenkins Commission on electoral reorm and the WakehamCommission on the uture o the House o Lords.

2. Negotiations among political leaders. Constitution-makingsometimes occurs through bargaining between negotiating


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teams rom various political parties, provinces or othergroupings. Such negotiations can take many orms, as canbest be summed up through a number o examples.

In Eastern Europe ollowing the collapse o communism,most especially in Poland and Hungary, new constitutionalstructures were devised at roundtable negotiations betweenrepresentatives o the old regimes and o the dissident

movements that had opposed them. Tese ora combinedsuch limited popular representation as was possible beoreelections were held with unavoidable representation orthose who still held the reins o power.

In Canada, major negotiations over the structure othe ederation and the question o Quebecs continuingmembership were conducted in the 1980s and early 1990s

through negotiations among the provincial premiers andthe ederal prime minister. Tese premiers could claimto represent the voters who had elected them, although,inevitably, the question also requently arose o whetherin act they also represented their own institutional andpartisan interests.

In Sweden, the perceived need or constitutional review that

has already been mentioned led in 1954 to the establishmento a parliamentary committee charged with devising reormproposals. In practice, the committee unctioned as a orumor building consensus among the various parliamentaryparties. Tis proved difficult and it was not until 1974that the review process was finally concluded and the newconstitution enacted.2

2 See Olo Ruin, Sweden: Te New Constitution (1974) and the radition oConsensual Politics, in Vernon Bogdanor (ed.), Constitutions in DemocraticPolitics(Aldershot: Ashgate, 1988), pp. 30927.


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In Northern Ireland, the Belast Agreement o 1998 wasnegotiated between the British and Irish governments andthe representatives o the political parties. Tis structure oindirect representation may have been crucial to acceptanceo the proposals that were drawn up and to the broadersuccess o the peace process.

3. Appointed or indirectly elected political conventions. Tiscategory includes constitution-making bodies where the

emphasis (at least in theory) is more upon deliberation thanupon negotiation. Te Philadelphia Convention o 1787belongs to this category: the members were (in almost allcases) elected by their respective state legislatures. Anotherexample is the much more recent Convention on the Futureo Europe, which devised a Constitution or Europe in20023: this Convention was designed to move away rom

the structure o intergovernmental negotiations in order towiden the democratic conversation and ease resolution odifferences. Most o its members were thus chosen rom theparliaments, rather than the governments, o the variousmember states and accession states.3

4. Civil society conventions. Citizens can be represented bygroups rom civil society as well as by politicians in orderto seek consensus across politically active society. Tismodel is rarely used as the primary organizing principle oconstitution-making processes. Indeed, the closest exampleis the unofficial Scottish Constitutional Convention o 198995. Tis body included representatives o the churches, tradeunions, business, local authorities, and ethnic minorities,as well as those political parties that agreed to take part.

3 See the Laeken Declaration on the Future o the European Union,http://european-convention.eu.int/pd/lknen.pd, last accessed 26 January 2014.


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Te key decisions were, however, dominated by the twoparticipating parties Labour and the Liberal Democrats.

5. Directly elected constituent assemblies. Directly electedconstituent assemblies are commonly used where newconstitutions need to be created ollowing independence asin India in 1947 or in the course o (attempted) democratictransition as, or example, in Spain in 19778, Bulgariain 19901, and unisia since 2011. Such assemblies are,

however, very rarely used in existing democratic contexts:i an existing legislature is to take on constituent unctions,it is likely to establish a committee to conduct the detailedwork, as in the Swedish case described above, while the resto the assembly gets on with its own regular business; andpoliticians may be reluctant to set up a separate constituentassembly lest it develop as a rival power centre.

In act, the only example in an established democracy oa constituent assembly distinct rom the regular legislaturethat was composed entirely by direct election appears tobe the Constitutional Council elected in Iceland in 2010in the wake o the banking crisis and consequent collapseo public confidence in the political system. Tis was ahighly unusual assembly, in that only independents ran orelection. Te intention was to create an assembly responsiveto popular concerns and ree o the institutional interests othe established power elite.

6. Citizens assemblies. Te major innovation in constitution-making processes in recent years has been the creationo citizens assemblies: assemblies comprising ordinarycitizens selected at random rom among those whoresponded positively to an invitation to take part. Such

assemblies have been used in the Canadian provinces oBritish Columbia and Ontario and in the Netherlands, in


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all cases to debate a possible new electoral system or theirpolity. Irelands ongoing Constitutional Convention is basedin part on this model and is introduced as one o the mixedmodels in the point below. Icelands recent constitutionalreorm process also incorporated a similar though limited element.

7. Mixed models. Finally, it is possible or the various puretypes that have been identified so ar to be combined in a

wide variety o ways. Te Irish Constitutional Convention isone example, including both randomly selected citizens andpoliticians. Iceland provides another recent example: theelected Constitutional Council was preceded by a one-offmeeting o randomly selected citizens. A third example comesrom Australia: the Constitutional Convention o 1998 washal directly elected and hal appointed. Furthermore, many

cases combine one or more o the representative elementswith an expert commission or advisory structure.

1.4 Who can Influence the Constitution-Making Bodys

Deliberations?

Tis question relates to two main issues: first, who sets theconstitution-making bodys agenda; second, are there mechanismsor outside actors to influence the bodys deliberations in respecto these agenda items?

Te question o agenda control is closely connected with thato the purposes o the constitution-making process, alreadydiscussed. Even once the basic purpose has been determined,there can be much variation in the degree o reedom that aconstitution-making body is given. Criteria by which alternativesare to be judged may be specified as they were or the Jenkins


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Commission, which investigated electoral reorm or the UKHouse o Commons in 19978. Areas o ocus may be moreor less tightly delineated: an inquiry into electoral reorm, orexample, may be lef to range broadly, thus potentially includingsuch matters as the size o the elected chamber, or restricted tospecified aspects o electoral structure.

At the same time, designers o the constitution-making processshould be aware that such a process, once initiated, may beharder to control than they expect. In Ireland, or example, theConstitutional Convention was given eight tightly specifiedareas o ocus, but it has not always respected the boundaries setor it. It was asked, or example, to consider whether the votingage should be lowered to seventeen, but chose to recommend areduction to sixteen.

With regard to influence over subsequent deliberations, allconstitution-making bodies are likely to invite submissions andhear rom expert witnesses. Such procedures can be structuredin many ways and some bodies have been highly active inseeking public engagement. Icelands proposed new constitutionhas sometimes been (inaccurately) labelled as crowd-sourcedbecause o the Constitutional Councils extensive use o socialmedia to stimulate debate on its preliminary ideas. South Aricas

Constituent Assembly attracted two million submissions duringits deliberations in the mid-1990s.4

1.5 What are the Constitution-Making Bodys Operational

Procedures?

Many aspects o operational procedure may be important. Tisis not the place to go into depth on such matters. We may note

4 Vivien Hart, Democratic Constitution Making, United States Institute o PeaceSpecial Report 107 (July 2003), p. 7.


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in passing, however, such issues as how members are able tomake proposals, how proposals are debated, whether the goal isthat decision-making should be by consensus or majority, whatvoting procedures are used, and what support any body has interms o research staff and resources to commission research orengage in field trips. Some o these matters, though seeminglytechnical, can be o enormous significance. Unanimous decision-making, or example, was indispensable in the success o the

Northern Ireland peace process but would be inconceivable in alarge elected assembly or citizens assembly.

1.6 What Happens to the Proposals that are Made?

Te final building block o the constitution-making processconcerns what happens once specific proposals or newconstitutional arrangements have been made. One possibility isthat the proposals are simply sent to the legislature or normalprocesses o scrutiny and decision. Another possibility is that thelegislature be required to act according to special procedures:using, or example, a two-thirds majority rule or requiringsuccessive majorities on either side o a general election. A thirdis that a constituent assembly itsel be given the power to passfinal decisions.

It seems inconceivable in the UK that Parliament would cedelaw-making authority to a rival constituent assembly: indeed, noother legislature in an established democracy has ever done so.Nor is there any precedent or special parliamentary adoptionprocedures in the UK. Te precedent that does exist, however,is that reerendums should be used alongside parliamentaryprocedures to settle major constitutional questions. Reerendums

were used to decide on devolution to Scotland and Wales in 1979and 1997; urther reerendums on devolution proposals have


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since been held in Northern Ireland, London, the North Easto England, and (again) Wales. Reerendums have also beenheld or promised on EU membership, significant extensionso EU powers, electoral reorm, and the creation o localmayors. Against this backdrop, decision by reerendum appearsinevitable i major reorms to the Union are proposed.

Tere are three principal ways in which a reerendum mightbe used:

1. Reerendum only. Parliament might authorize a constitution-making body to draw up proposals that would go straight toreerendum without urther parliamentary scrutiny and thatParliament would be obliged subsequently to implement.Tere are no precedents or such an arrangement in theUK, but it is the procedure that was used or the twocitizens assemblies in Canada. While Parliament may notbe able legally to bind itsel to observing such a procedure,ignoring it may become politically impossible once it hasbeen established.

2. Parliamentary deliberation ollowed by reerendum. A secondoption is that the constitution-making body might drafproposals which it would send to Parliament or urtherscrutiny. Only afer such scrutiny would a reerendum

be held. Tis was the procedure used ollowing the Dutchcitizens assembly, and in act disagreements in the legislaturemeant that the reerendum was never held. Elsewhere,by contrast, though parliamentary intercession occurred,non-implementation would have been unthinkable: therewas no question, or example, that the UK Parliament mightail to legislate or the reerendum than ollowed the BelastAgreement in 1998.


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3. Reerendum ollowed by parliamentary deliberation. Te finaloption is that a reerendum may be held on the plan devisedby the constitution-making body, but that a Yes vote isollowed by urther parliamentary scrutiny. Arrangementssuch as this have recently been avoided in the UK: in thecase o the AV reerendum, or example, parliament passedprior legislation implementation o which was conditionalon public support. Te main reason or avoiding post-

reerendum parliamentary intercession is clear: any(perceived) deviation by Parliament rom the popular willwould be raught with political dangers. Nevertheless, suchprocedures have been used in some cases, sometimes toaccommodate entrenched procedures or constitutionalamendment. In Iceland, or example, where the constitutioncan be amended only through successive parliamentarymajorities either side o a general election, a reerendumin October 2012 on the Constitutional Councils proposalshad no ormal legal standing. Remarkably, the Icelandicparliament has reused to endorse the proposed constitutionthat was overwhelmingly supported in the reerendum.

As this survey shows, the building blocks o any constitution-making process are many and they can be combined in

innumerable ways. Deeper exploration o some real-world caseswill help us in identiying the options that are more or less easibleand assessing just how they have worked out in practice. Te nextpart o this paper addresses that task.


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Part 2: Constitution-Making aroundthe World

Te preceding section contained brie comments on variousconstitution-making processes around the world. Here we delveinto some o the most pertinent examples in greater depth.Section 1.3 above identified seven basic models or the designo a constitution-making body, and the accounts in this sectionwill ollow that structure. Tose models, and the examples thatwe will explore in order to illuminate them, are the ollowing:

1. expert commissions: the Kilbrandon Commission o196973 and the Richard, Calman, and Silk Commissionssince 2000;

2. negotiation among leaders: Canadas Meech Lake andCharlottetown Accords o 1987 and 1992, and the NorthernIreland Belast Agreement o 1998;

3. indirectly elected assembly: the Convention on the Future o

Europe o 20023;4. civil society convention: the Scottish Constitutional

Convention o 198995;

5. elected constituent assembly: Icelands ConstitutionalCouncil o 2011;

6. citizens assembly: the assemblies in British Columbia in2005, the Netherlands in 2006, and Ontario in 20067;

7. mixed assembly: the Australian Constitutional Conventiono 1998 and Irelands Constitutional Convention o 201314.


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2.1 Expert Commissions: Kilbrandon, Richard, Calman,

and Silk

Te examples discussed in this section are our commissions thathave shaped debates over devolution in the UK:

Te Kilbrandon Commission was established in 1969,originally as the Crowther Commission, under thechairmanship o the ormer Economisteditor Lord Crowther.

Lord Kilbrandon took over as chair ollowing Lord Crowthersdeath in 1972. Te Commission was tasked with consideringwhether changes should be made to governing structures inrelation to the several countries, nations and regions o theUnited Kingdom.5

Te Richard Commission was ormed in 2002 by theLabourLiberal Democrat coalition that then controlled

the Welsh Government. Its remit was to consider whetherany changes should be made to the depth and breadth o thepowers o the Welsh Assembly and to the system o electingthe Welsh Assembly.6

Te Calman Commission was established by majority votein the Scottish Parliament in 2007 over the opposition othe SNP minority government. It was asked to recommend

any changes to the present constitutional arrangements thatwould enable the Scottish Parliament to serve the people oScotland better, improve the financial accountability o the

5 Royal Commission on the Constitution 19691973, Volume I: Report,October 1973, Cmnd. 5460, p. 5.

6 Commission on the Powers and Electoral Arrangements o the NationalAssembly or Wales, Report o the Richard Commission, spring 2004,pp. 2656.


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Scottish Parliament, and continue to secure the position oScotland within the United Kingdom.7

Te Silk Commission was appointed in 2011 and was askedto review, in two stages, the financial and the non-financialpowers o the Welsh Assembly.8It published its second andfinal report in March 2014.

Composition and the Notion o Expertise

An expert commission is a small body o individuals who haverelevant experience and who are chosen, at least in part, becauseo their capacity to deliberate effectively about the issues in handand contribute to reasoned proposals. Te bodies reerred to hereas expert commissions are, however, diverse in their character:the notion o expertise that they embody can be narrowly or

widely drawn.At the narrow end o that spectrum, the members o a commissionmay be independent o the existing political establishment andhave specific proessional expertise relevant to the matters thatthe commission is tasked with deciding. Tis model describesmuch o the Kilbrandon Commission: its sixteen originalmembers (an unusually large number) included our academics,

two university or college heads, two lawyers, a businessman,an industrialist, the Moderator o the General Assembly o theChurch o Scotland, and the ormer editor o the Economist.9In an even more striking example the five members o the New

7 Commission on Scottish Devolution [Calman Commission], Serving ScotlandBetter: Scotland and the United Kingdom in the 21st Century, June 2009, p. 20.

8 Commission on Devolution in Wales [Silk Commission], Empowerment andResponsibility: Financial Powers to Strengthen Wales, November 2012, p. 17.

9 Royal Commission on the Constitution 19691973, Volume II: Report,October 1973, Cmnd. 5460, p. iii; House o Commons Hansard, 3 April 1969,vol. 781, col. 176.


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Zealand Royal Commission on the Electoral System o 198586included a judge, a statistician, and three academics, none owhom had strong political affiliations.

But expert commissions commonly reflect a wider conceptiono expertise than this. Most contain political grandees who canassist in connecting principle to political reality. Te CalmanCommission included peers rom the Labour, Conservative, andLiberal Democrat parties, while our o the seven members o theSilk Commission that investigated urther devolution to Wales arerepresentatives o the political parties. Many commissions alsoinclude representatives o civil society. Te Calman Commission,or example, included such diverse members as the Directoro CBI Scotland, the Scottish Secretary o the UNISON tradeunion, the Executive Director o a Glasgow housing cooperative,and a ormer Chair o the Scottish Youth Parliament. Expert

commissions thus ofen draw, in part, on the model o the civilsociety convention discussed in section 2.4 below.

Operation and Outcomes

Te operation o these commissions is sufficiently amiliar not torequire detailed description. In all cases, they invite submissionsrom interested bodies and individuals and members o the

general public and hold oral evidence sessions; in some cases,they also commission original research papers. Tey draw onthese resources to deliberate possible solutions to the issues theyhave been asked to consider and publish reports setting out theiranalysis and recommendations.

Commissions strive to operate consensually. Te report o theCalman Commission was agreed unanimously, as were both

reports o the Silk Commission. Te Richard Commissionsreport contained a note o dissent rom one member, who argued


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that the case or change had not yet been made, though he didwelcome the reports contribution to debate.10Te KilbrandonCommission was less consensual: two members issued a rivalreport that dissented rom core aspects o the majority reportand proposed detailed alternatives.11

Te recommendations o all o these commissions have beentaken seriously. Te Kilbrandon report paved the way or the(ailed) Scottish and Welsh devolution reerendums o 1979. TeRichard Commissions proposal that the Welsh Assembly shouldhave primary legislative powers was implemented ollowing areerendum in 2011. Te Calman Commissions main proposalsor urther devolution to Scotland, including significantdevolution o fiscal powers, were enacted by the Scotland Acto 2012.

Assessment

Te experience o the Richard, Calman, and Silk Commissionsshows that such expert commissions can be effectivemechanisms or reviewing opinion and evidence and refiningproposals relating to the detail o devolution arrangements. Tedebate that they arouse does, however, remain rather specialist:i what is desired is a national conversation about the uture

structure o the Union, they are weak instruments or achievingthat. Te Richard and Calman Commissions did not settle theconstitutional positions o Scotland and Wales within the Union.A wider and more ambitious review o the status quo is thereorelikely to require a different approach.

10 Commission on the Powers and Electoral Arrangements o the NationalAssembly or Wales, Report o the Richard Commission, spring 2004, p. 305.

11 Royal Commission on the Constitution 19691973, Volume II: Memorandumo Dissent by Lord Crowther-Hunt and Proessor A. . Peacock, October 1973,Cmnd. 5460I.


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2.2 Negotiation among Leaders: Canada and

Northern Ireland

Decision-making in the run-up to the Scottish independencereerendum has been dominated by elite bargaining: specifically,by intergovernmental bargaining between Whitehall andHolyrood, embodied in the Edinburgh Agreement o October2012. It makes sense, thereore, to ask whether intergovernmental

bargaining could suffice to work out the details o a post-reerendum constitutional settlement as well. Would it work orwould it suffer unacceptable problems?

Tis section discusses two very different processes o importantconstitution-making that were dominated by elite bargaining.Te first is the intergovernmental bargaining around the MeechLake and Charlottetown Accords in Canada in the late 1980s and

early 1990s. Te second is the partly intergovernmental and partlyinterparty negotiation that preceded the Belast Agreement o1998. Te first o these was a striking ailure, the second an evenmore noteworthy success. Given its amiliarity, the discussion othe latter case is kept brie.

Intergovernmental Bargaining in Canada

Canada did not achieve ull control over its constitution until1982: despite the Statute o Westminster o 1931, amendmento Canadas constitutional text the British North America Act,passed by the UK parliament in 1867 remained Westminstersprerogative. Afer years o complex discussions, this situationwas eventually changed by the Constitution Act o 1982, passedby the Canadian parliament. Tis Act also introduced Canadas

bill o rights the Charter o Rights and Freedoms and made anumber o other changes.


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While the Constitution Act was a major step in Canadasconstitutional history, it suffered what one political scientist has(exaggeratedly) called a atal flaw: it had been signed over thebitter objections o the government o Quebec.12Quebec had noright to veto it. Nevertheless, For many, the exclusion o Quebecgrievously undermined the legitimacy o the new constitutionalorder.13 Efforts thereore continued to bring Quebec into theold, culminating in a meeting o the eleven provincial premiers

and the ederal prime minister at Meech Lake on 30 April 1987,at which the Meech Lake Accord was agreed. Quebec wouldbe recognized as a distinct society and the provinces wouldgain new powers, including a veto power over constitutionalamendments.14

But the Meech Lake Accord would come into effect only i itwas ratified by all the provincial legislatures within three years.

Quebecs endorsement came quickly and most other provincesollowed, but passage proved impossible in Manitoba and itwas clear that Newoundland would withdraw its consent i theprocess were continued. Te Accord thereore lapsed.

Renewed negotiations led to a second intergovernmentalagreement: the Charlottetown Accord o August 1992. Tis timeapproval was sought by reerendum. Te Accord was supported

by most o the political establishment, but the polls alwayssuggested that gaining popular backing across the provinceswould be very difficult, and as the campaign proceeded a decisive

12 Richard Simeon, Meech Lake and Shifing Conceptions o CanadianFederalism, Canadian Public Policy, vol. 14, supplement (September 1988),pp. S7S24, at p. S8.

13 Ibid., p. S8.

14 For a detailed introduction to the Meech Lake Accord and the issues it raised,see ibid.


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majority or No emerged.15In the end, the Accord was rejectedby 54 per cent o voters to 46, with pro-Accord majorities in onlyfive provinces.

Tough Canada has a long tradition o executive ederalismin which key decisions are determined through meetings o theprovincial and ederal premiers, many commentators attributesome o the ailure o the Meech Lake and Charlottetown Accordsto the excessively intergovernmental nature o the negotiationsand the perception that ordinary citizens were excluded. Tenegotiations over the 1982 Constitution Act had been primarilyintergovernmental, but openings to public participation hadbeen made through parliamentary inquiries and the hearingso the Ppin-Robarts ask Force. In addition, governments hadsought to mobilize public opinion in order to strengthen theirbargaining positions.16Furthermore, the 1982 Act particularly

the Charter o Rights and Freedoms encouraged the view thatthe constitution belonged to the people, not the governments:Te Charter reduced the relative status o governments andstrengthened that o the citizens who received constitutionalencouragement to think o themselves as constitutional actors.17

In light o this, the starkly intergovernmental nature o the MeechLake Accord was widely criticized:

15 Richard Johnston, An Inverted Logroll: Te Charlottetown Accord and theReerendum, PS: Political Science and Politics, vol. 26, no. 1 (March 1993),pp. 4348, at pp. 4647.

16 Alan C. Cairns, Te Politics o Constitutional Renewal in Canada, in KeithG. Banting and Richard Simeon (eds.), Te Politics o Constitutional Changein Industrial Nations: Redesigning the State(London: Macmillan, 1985),pp. 95145, at pp. 11214.

17 Alan C. Cairns, Citizens (Outsiders) and Governments (Insiders) inConstitution-Making: Te Case o Meech Lake, Canadian Public Policy,vol. 14, supplement (September 1988), pp. S12145, at p. S122.


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Te Accord was reached in two closed meetings o agroup o 11 male First Ministers, with only a ew officialspresent at the second one. Unlike some other FirstMinisters Conerences on the Constitution, there was nodebate in ront o television cameras. Ten the Accordwas placed beore the country and the 11 legislatures asa ait accompli. It was a delicate, tenuous compromise.I any one legislature amended it, it would be thrownback to the First Ministers where it could quickly comeapart. So legislators were told that they must vote theagreement up or down; there could be no changes, unlesssome egregious error, obvious to all governments, wasdiscovered. Many critics argued that this meant thelegislative committee hearings and public debate were asham, since they could have no effect on the result shorto killing it outright.18

Te Meech Lake ailure led to efforts to increase public

participation in the deliberations that ollowed:

One lesson o Meech seemed to be that the people atlarge would no longer tolerate being excluded romdeliberation over what was, afer all, their constitution.Tat it was their constitution was a novel idea encouragedby the 1982 constitution. From widespread attackson the Meech Lake Accord as the supreme example oelite bargaining by the ederal prime minister and tenprovincial premiers, the ederal government drew thelesson that the people must be consulted widely, i only tobore them to death.19

Still, however, afer an initial public consultative phase, the finalCharlottetown Accord was negotiated, as beore, among the

18 Simeon, op. cit., pp. S2122.

19 Johnston, op. cit., pp. 4445.


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provincial and ederal premiers.20Public distrust in this processappears to be evinced again in voters reusal to back the Accord,despite the broad consensus o the political elite.

Tese Canadian experiences thus exempliy an important dangero constitution-making by elite negotiation: it may delegitimizethe decisions that are reached in the eyes o the public, therebyjeopardizing their successul implementation.

Negotiation o the Belast Agreement, 1998

It should not be thought, however, that all elite-dominatedconstitution-making processes are doomed to ailure. As acounterpoint to the Canadian experience, is it worth while tomention the very different lessons that might be drawn romNorthern Irelands peace negotiations. Te key negotiations

preceding the Belast Agreement in 1998 took place behindclosed doors among the representatives o the British and Irishgovernments and the parties o Northern Ireland. So too did laterrounds o talks, such as those culminating in the St AndrewsAgreement o 2006.

Te Northern Ireland talks are sufficiently amiliar not to requiredetailed description here. What needs to be noted is simply

that they succeeded. While various politicians were sometimesaccused by some o their supporters o conceding too much, andwhile some on the political ringes continued to deny the validityo the peace process as a whole, among those who supported thepeace process in principle, there was little dissent rom the viewthat elite bargaining was the appropriate way orward. Indeed,there is every reason to think it was the only possible approach.Te concessions necessary or consensus-building can ofen

20 Ibid., p. 45.


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be offered only away rom the limelight. In addition, the talksrepresented a societal as well as a political bargain, and whereverone group bargains with another, it wants to be represented byits best possible negotiators.

Notwithstanding the Canadian experience, thereore, thereare circumstances in which elite bargaining may be the onlyplausible path to take.

2.3 Indirectly Elected Assembly: Te Convention on theFuture of Europe

Te most amous constitution-making body o all thePhiladelphia Convention o 1787 was an indirectly electedassembly: its 55 members were delegates o the thirteen stateschosen by their legislatures. Here, however, we concentrate

on a much more recent case: the Convention on the Future oEurope, which drafed a constitution or the European Union in2002 and 2003.

Convention on the Future o Europe: Origins and Purpose

Te Convention was established by the Laeken Declarationagreed at the European Council o December 2001. Te role

ormally assigned to the Convention was limited:

In order to pave the way or the next IntergovernmentalConerence as broadly and openly as possible, theEuropean Council has decided to convene a Conventioncomposed o the main parties involved in the debate onthe uture o the Union. In the light o the oregoing, itwill be the task o that Convention to consider the key


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issues arising or the Unions uture development and tryto identiy the various possible responses.21

Te Convention was thus not given the task o drafing aconstitution. Indeed, the idea that a Constitution or theEuropean Union might be developed was mentioned only brieflyin the Declaration, and only as a long-term aspiration:

Te question ultimately arises as to whether thissimplification and reorganisation [o the EUs varioustreaties] might not lead in the long run to the adoption oa constitutional text in the Union. What might the basiceatures o such a constitution be? Te values which theUnion cherishes, the undamental rights and obligationso its citizens, the relationship between Members Statesand the Union?22

As these quotations suggest, in establishing the Convention,European leaders sought, in part, to open up discussionsaround the structure o the EU beyond the traditional channelo inter-governmental negotiations. Te preceding decade hadseen bruising battles over the ratification o three EU treaties:those o Maastricht, Amsterdam, and Nice. Te Nice reaty,indeed, had been rejected by Irish voters just months earlier,in a reerendum in June 2001. Public confidence in the EU

had weakened and the perception had grown o a democraticdeficit.23 I the treaties were to be revised again, then a moreopen discussion would be needed in order to build publiclegitimacy and trust.

21 Laeken Declaration on the Future o the European Union,http://european-convention.eu.int/pd/lknen.pd, last accessed 26 January2014, p. 6.

22 Ibid., p. 6.

23 See, or example, Giandomenico Majone, Europes Democratic Deficit:Te Question o Standards, European Law Journal4, no. 1 (March 1998), 528.


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In addition, all members except the Chairman and Vice-Chairmenhad alternates, who were over time increasingly incorporated intothe work o the Convention as though they were ull members.26Selection procedures were lef up to the various nominatingbodies and differed greatly in transparency.27

Mode o Operation

Te Laeken Declaration gave the Convention much reedomto determine its own modes o operation. Its work wouldbe coordinated by a Praesidium comprising the Chairman,Vice-Chairmen, and nine other Convention members. TeDeclaration indicated that the Convention would be able toconsult Commission officials and experts o its choice on anytechnical aspect which it sees fit to look into and that it mayset up ad hoc working parties.28 It also stipulated the parallelcreation o a civil society Forum:

In order or the debate to be broadly based and involveall citizens, a Forum will be opened or organisationsrepresenting civil society (the social partners, the businessworld, non-governmental organisations, academia,etc.). It will take the orm o a structured network oorganisations receiving regular inormation on the

Conventions proceedings. Teir contributions will serveas input into the debate. Such organisations may beheard or consulted on specific topics in accordance witharrangements to be established by the Praesidium.29

26 Closa, op. cit., p. 189.

27 Ibid., p. 189.

28 Laeken Declaration, op. cit., p. 7.

29 Ibid., p. 7.


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In practice, it appears that the Forum had only a limited role:over 500 groups participated in it, but there is no evidence thatthey had any influence over the decisions that the Conventionmade.30

Rather, two eatures o the Conventions mode o operation areparticularly noteworthy: first, it chose to interpret its termso reerence broadly; second, it sought to conduct its affairsconsensually and largely succeeded in doing so.

Te goal o recommending a single constitutional text wasalready apparent in the Chairs introductory speech during theConventions inaugural session:

Te Laeken Declaration leaves the Convention ree tochoose between submitting options or making a singlerecommendation. It would be contrary to the logic o

our approach to choose now. However, there is no doubtthat, in the eyes o the public, our recommendationwould carry considerable weight and authority i wecould manage to achieve broad consensus on a singleproposal which we could all present. I we were to reachconsensus on this point, we would thus open the waytowards a Constitution or Europe. In order to avoid anydisagreement over semantics, let us agree now to call it:a constitutional treaty or Europe.31

As Paul Magnette notes, Within the Convention, a large majoritysoon emerged to promote an ambitious interpretation o the

30 See Emanuela Lombardo, Te Participation o Civil Society in the EuropeanConstitution-Making Process, paper prepared or the CIDEL WorkshopConstitution Making and Democratic Legitimacy in the EU, London,1213 November 2004.

31 Introductory Speech by President V. Giscard dEstaing to the Convention onthe Future o Europe, 26 February 2002, http://european-convention.eu.int/docs/speeches/1.pd, last accessed 31 January 2014.


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British Labour MEP, [or example,] you could be joining orceswith the EP-delegation, with the parliamentary delegation(including representatives rom national parliaments), the socialdemocratic delegation or with the other British representatives.35Furthermore, many o the members were open to discussionand persuasion: they did not carry baggage rom previousnegotiations.36And the openness o the discussions in contrastto the closed negotiations o an inter-governmental conerence

required participants to couch their arguments in terms ogeneral principles rather than narrow interests.37

What was sometimes called the Convention spirit wasmaintained throughout its operations. Te aspiration to agreea single recommendation by broad consensus was realized.38

Assessment

In many respects the Convention was thereore clearly agreat success. Its deliberations were o high quality and it arexceeded initial expectations by producing a ull draf text oran EU constitution. In Hoffmanns view, in many respects theConvention can be considered to be an ideal mix o politics,law and citizen participation, which might be the key to utureconstitutional changes in an EU with a political, economic, and

possibly even military ramework.39

35 Lars Hoffmann, Te Convention on the Future o Europe: Toughts on theConvention-Model, Jean Monnet Working Paper 11/02 (New York: NYUSchool o Law, 2002), p. 7.

36 Ibid., p. 17.

37 Ibid., p. 17.

38 Report rom the Presidency o the Convention to the President o theEuropean Council (CONV 851/03), http://european-convention.eu.int/pd/reg/en/03/cv00/cv00851.en03.pd, last accessed 31 January 2014, p. 4.

39 Hoffmann, op. cit., p. 17.


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Nevertheless, it also had limitations. Even at the time, concernswere expressed that, while the Convention developed deepshared understanding among its own members, it did notsucceed in engaging a wider public. For Closa, the Conventionlacked a direct mandate and, hence, it was imbued with indirectand derived legitimacy. He continues:

Te Convention has ailed to engage European civil societyin a constitutional debate, even though the constitutionaldialogue has been greater than ever beore. So ar, theConvention has ailed to produce the kind o mass civicmobilization required or a constitutional moment tomaterialize.40

He concludes, I the EU aims towards some sort o constitution,then the legitimacy o this should be more firmly grounded ondirect citizens input.41

Tese words, published in 2004, were prescient. Afer theConvention sent its draf constitution to the European Council,contentious inter-governmental negotiations ollowed, leading tothe signing o a reaty Establishing a Constitution or Europe inJune 2004. At the ratification stage, however, the project ran intothe ground. Reerendums were planned in nine countries, andtwo o these Spain and Luxembourg supported ratification.

But voters in France and the Netherlands rejected the treaty inMay and June 2005 respectively, and the reerendums in theremaining five countries including the UK were abandoned.Lack o public consent ensured that Europes new constitutionremained an aspiration only though more limited changes tothe EUs governing structures were eventually made through theLisbon reaty o 2007.

40 Closa, op. cit., p. 203.

41 Ibid., p. 204.


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2.4 Civil Society Convention: the Scottish Constitutional

Convention

A civil society convention, like an indirectly elected assembly,provides or indirect representation o the people. In this case,however, the people are represented not only by those whomthey have chosen in public elections, but also by leading figuresrom organized civil society. A number o bodies that broadly

fit this description can be ound rom around the world. Forexample, the roundtable negotiations during transition romcommunism in Hungary in 1989 included the government,the emerging opposition parties, and a range o third partiesthat included trade unions and womens organizations. Tebest example, however, is also the closest to home: the ScottishConstitutional Convention o 198995.

Origins o the Scottish Constitutional Convention

Uniquely among the constitution-making bodies discussed here,the Scottish Constitutional Convention was an unofficial organ:the initiative came not rom the state, but rom the Campaign ora Scottish Assembly (CSA), a cross-party pressure group ormedin 1979 in the wake o deeat in the devolution reerendum o that

year.42

Following the 1987 general election, the CSA establisheda Constitutional Steering Committee, which it described asa committee o prominent Scots, representing all sections oScottish society (but not including prominent politicians).43Te Committee was asked to report on all aspects o the caseor reinorcing Parliamentary action by setting up a Scottish

42 Scottish Constitutional Convention, owards Scotlands Parliament: A Reportto the Scottish People by the Scottish Constitutional Convention(Edinburgh,November 1990), p. 4.

43 Ibid., p. 4.


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Constitutional Convention or the express purpose o securingthe creation o a Scottish Assembly.44

Tus, despite the CSAs claim that the Committee representedall o Scottish society, in act it was a body constituted toavour some orm o assembly or parliament or Scotland.45 Itsreport which, according to one excitable commentator at thetime, is now widely acknowledged as one o the importantdocuments o contemporary British history46 asserted thatTe United Kingdom is a political arteact put together atEnglish insistence.47 It characterized the British constitution asa solely English constitution, which sustained only the illusiono democracy.48It began its analysis with a resolute assertion oScottish nationhood.49

Te Committee considered three possible models or a Scottishconstitutional convention: a directly elected assembly; anassembly o existing elected representatives; and what it called adelegate convention what is here reerred to as a civil societyconvention. It lef no doubt that, in an ideal world, the best optionwould be the first:

44 Constitutional Steering Committee:A Claim o Right or Scotland: Report othe Constitutional Steering Committee, Presented to the Campaign or a Scottish

Assembly(Edinburgh, July 1988), p. 29.45 James Mitchell, Constitutional Conventions and the Scottish National

Movement: Origins, Agendas and Outcomes, Strathclyde Papers on Governmentand Politics (Glasgow: Department o Government, University o Strathclyde,1991), p. 25.

46 Iain Macwhirter, Afer Doomsday: Te Convention and ScotlandsConstitutional Crisis, in Alice Brown and Richard Parry (eds.), Te ScottishGovernment Yearbook 1990(Edinburgh: Department o Politics, Universityo Edinburgh, 1990), pp. 2134, at p. 24.

47 Constitutional Steering Committee, op. cit., p. 6.

48 Ibid., p. 4.

49 Ibid., p. 1.


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Te creation by Government o a directly elected ScottishConstitutional Convention, with the task o preparingan Assembly scheme or consideration and adoption byGovernment, is the most obvious and suitable way oresolving the Scottish problem. 50

It recognized, however, that holding elections or such aconvention would be impracticable without central governmentsupport, which, at the time, was very unlikely to be orthcoming.

It thereore explored the second and third options as morerealistic paths orward:

An indirectly elected chamber would consist o MPs andlocal councillors. Tere would be difficulties in this: MPsmight find it difficult to take time rom their existingduties; and the electoral system used to elect MPs andlocal councillors would mean that representation was, in

the eyes o many, distorted. Te ormer problem might betackled by establishing a system o alternates, while theCommittee suggested that the latter should be addressed byadding supplementary members rom the underrepresentedparties.51

A delegate convention could be established on the modelo the Scottish Economic Summit Conerence o 1986,

which comprised individuals rom local authorities, tradeunions, the Scottish Council (Development and Industry),Chambers o Commerce, CBI (Scotland), the churches andall Scottish political parties.52 Te Committee did worry,however, that such a convention could lack legitimacy:

50 Ibid., p. 14.

51 Ibid., pp. 1516.

52 Ibid., p. 17.


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A body o this type could have little authority to act asa Constitutional Convention unless it comprised notmerely individuals rom a wide range o organisations,but delegates carrying with them the ull authorityand wholehearted support o these organisations.A substantial degree o local authority support would beimportant. Even then, the authority o the Conventionwould depend heavily on the range o other organisationsrepresented and there would be room or debate about thesupport they commanded.53

Te Committee concluded that, i a convention were to beestablished on this basis, MPs would need to be included aswell: I the MPs collectively, and with them the Parties theyrepresent, do not give clear support to a Convention, it willoperate under serious difficulties.54

Te Committees report was ollowed by cross-party discussions.

Labour was initially sceptical, but by the autumn o 1988 cameround to the idea o a convention. Te Conservative Party indicatedrom the beginning that it had no intention o participating.Te Liberal Democrats were always in avour. Te ScottishNational Party joined the talks initially, but its preconditions orparticipation in the convention were unacceptable to the otherparties (perhaps deliberately so) and it thereore withdrew.55

Labour and the Liberal Democrats were thus the main partisanplayers that brought the convention proposals to ruition.

53 Ibid., p. 17.

54 Ibid., p. 17.

55 Macwhirter, op. cit., pp. 2530; Susan Deacon, Adopting ConventionalWisdom: Labours Response to the National Question, in Alice Brown and

Richard Parry (eds.), Te Scottish Government Yearbook 1990(Edinburgh:Department o Politics, University o Edinburgh, 1990), pp. 6275, atpp. 6770; Mitchell, op. cit., p. 27.


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Composition o the Convention

Te Convention as established in 1989 included 159 members:

55 o Scotlands MPs (rom Labour and the LiberalDemocrats);

7 o Scotlands 8 MEPs (all rom Labour);

representatives o all 12 regional and island councils;

representatives o 47 o Scotlands 53 district councils;

7 political party representatives (one each rom Labour, theLiberal Democrats, and five minor parties)

15 additional representatives rom Labour (5 members) andthe Liberal Democrats (10 members)

16 representatives o the Scottish rades Union Congress,

the National Federation o Sel-Employed and SmallBusiness (Scottish Section), the churches, the ScottishConvention on Women, Gaelic-speakers organizations,and ethnic minorities (plus three urther members withobserver status).56

As is apparent rom this listing, elected politicians dominated.Nevertheless, the character o the Convention as a gathering o

the Scottish nation was strongly emphasized. Te Chair o theConventions Executive Committee and the most prominentpublic representative o the Convention as a body was CanonKenyon Wright, the General Secretary o the Scottish Council oChurches. At the Conventions inaugural meeting, in March 1989,he claimed that the Convention, including as it did more than 80per cent o Scotlands MPs, almost all its local authorities, and arange o other voices, was much more representative o Scotland

56 Scottish Constitutional Convention, op. cit., pp. 1920.


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than the Westminster Parliament is o the UK.57Tat same meetingissued A Claim o Right or Scotland, which stated:

We, gathered as the Scottish Constitutional Convention,do hereby acknowledge the sovereign right o the Scottishpeople to determine the orm o Government best suitedto their needs, and do hereby declare and pledge that inall our actions and deliberations their interests shall beparamount.58

Operation and Outputs

Te lie o the Scottish Constitutional Convention can bedivided into two phases. Te first began with the Conventionsinaugural meeting in March 1989 and ended with the adoptionand publication o its first report, owards Scotlands Parliament,

in November 1990. During this period, the Convention met inpublic, plenary session seven times.59Most o the detailed workwas, however, done in committee.60Indeed, according to JamesKellas, Te Conventions Report to the Scottish People was theresult o eighteen months negotiation between the delegateswho comprised the Executive Committee (the plenum merelyendorsed without a vote).61

Te 1990 report set out the broad ramework or a new Scottishparliament, establishing principles regarding the parliamentspowers and responsibilities, the financing o its spending, and

57 Macwhirter, op. cit., p. 31.

58 Scottish Constitutional Convention, op. cit., p. 1.

59 James G. Kellas, Te Scottish Constitutional Convention, in LindsayPaterson and David McCrone (eds.), Te Scottish Government Yearbook1992(Edinburgh: Department o Politics, University o Edinburgh, 1992),pp. 5058, at p. 50.

60 Macwhirter, op. cit., p. 31.

61 Kellas, op. cit., p. 55.


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the representative structure o the parliament itsel.62At twentypages, however, it was a short document, and it did not providemuch detail. In particular, it accommodated disagreementamong the Conventions members in various areas throughimprecision. Most notable in this respect was the electoralsystem, on which the positions o Labour and the LiberalDemocrats had been sharply divided. Te report stated that Tepresent first-past-the-post electoral system is not acceptable or

Scotlands Parliament; but it offered only a set o principles toguide the shaping o an alternative principles that it wouldnot be straightorward to reconcile and the promise o urtherdiscussion.63

Te 1990 report was ollowed by a period o limited activity. Indeed,it was not uncommon at the time to reer to the meeting and reporto November 1990 as final.64 Solutions to the disagreements

among the Conventions key players were not readily apparent.Nevertheless, solutions would be needed i the aspiration to createa Scottish Parliament was to be realized. In 1993, thereore, thesecond phase o activity was ushered in with the creation o anexpert Scottish Constitutional Commission tasked with findingsuch solutions. Te Commission was asked to make proposals inthree areas: the electoral system or a Scottish parliament, the issueo gender and ethnic minority representation and the relationship

between a Scottish parliament and the UK constitution.65It dulyreported in 1994. Te Convention then produced its final report,building on the Commissions recommendations, in 1995.66

62 Scottish Constitutional Convention, op. cit.

63 Ibid., p. 17.

64 E.g., Kellas, op. cit., p. 57.

65 Peter Lynch, Te Scottish Constitutional Convention 19925, Scottish Affairs15 (spring 1996).

66 Scottish Constitutional Convention, Scotlands Parliament, Scotlands Right(Edinburgh: Scottish Constitutional Convention, 1995).


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Assessment

In important respects, the Scottish Constitutional Conventionwas clearly a great success. It brought together a broad rangeo representatives o Scottish opinion. It secured agreementbetween two important political parties Labour and the LiberalDemocrats that had shared the desire to establish a Scottishassembly but had disagreed sharply as to the orm that that

assembly should take. Te Convention produced two majorreports that became the basis or one o the most significantconstitutional changes in the UK in the twentieth century. Tegreat majority o the Conventions proposals including on thecontentious matter o the electoral system were subsequentlyimplemented by the Labour government afer its election in1997. Tus, in contrast to the Canadian and EU examplesdiscussed above, the Scottish Constitutional Convention wasinstrumental in delivering actual constitutional change. Tatmay have reflected, at least in part, its combination o top-downand bottom-up participation.

Yet the Convention has been criticized on at least two ronts.First, it was ar less inclusive than at first it might have appeared.Civil society presence was skewed towards the lef: the businesscommunity was only marginally represented, and even then only

by a small business pressure group which has been a requentcritic o the Conservative Government.67 More importantly,despite the presence o Canon Kenyon Wright as Chair o theExecutive Committee, the Convention was in practice dominatedby the politicians and, specifically, by the significant politicalparties that opted to take part: Labour and the Liberal Democrats.Lynch offers our interpretations o the Convention, all o which

67 Mitchell, op. cit., p. 16.


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view these parties as the core participants.68Kellas characterizesthe Convention as providing a process whereby the competingLabour and Liberal Democrat visions o Scotlands uturewere reconciled:

Until 1989, when the Convention commenced, devolutionproposals were to be ound in the programmes o theLabour and Liberal/SDP Alliance parties. Tere wereobvious differences between these programmes, notably

in the ederalist nature o the Liberal proposals, and inthe more devolutionist approach o the Labour Party. Bythe time the Convention reported at the end o November1990, the Labour proposals had merged with those o theLiberals.69

Second, even i the Convention had gathered representativeso the ull spectrum political and civil society, its model o

representation may be viewed as elitist. Writing o all Scotlandsconstitutional conventions during the twentieth century,Mitchell argues that they have always been elite affairs where adisdainul attitude towards the Scottish people, in whose namethe demand or sel-government is always made, is evident.Tere has never been any serious attempt to bring the Scottishpublic into the decision-making process.70As we saw above, theConstitutional Steering Committee had itsel seen the modelo indirect representation that the Conven

After the Referendum Options For a Constitutional Convention by Alan Renwick

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