29 September 2014
Article written by Alys Thomas, National Assembly for Wales Research Service
In the aftermath of the Scottish referendum, in which Scotland voted to stay in the UK but a substantial minority voted to leave, politicians from all parties are agreed that constitutional arrangements in the UK must change. However, as yet there is no agreement as to what should be done and how it should be achieved.
The Prime Minister announced a Commission under Lord Smith of Kelvin to carry forward undertakings given for new Scottish powers, and appointed a Cabinet sub-committee under William Hague MP to take forward proposals for Wales, Northern Ireland and England.
However, the Labour leader, Ed Miliband MP, pledged a constitutional convention to be held in the autumn of 2015. The First Minister, Carwyn Jones AM, has been calling for a constitutional convention for two years and he reiterated his call in his speech to the Labour Conference on 22 September 2014.
The House of Commons Committee on Political and Constitutional Reform (PCSC) held an inquiry in 2012 on whether the UK needed a constitutional convention. It reported in March 2013 and concluded that “there is some argument for a convention to look at the future constitutional structure of the UK”. However, the Committee was of the opinion that the representation of England in the UK must be addressed first, possibly through a pre-convention. In its response the UK Government indictated that it was not in favour of either.
Other calls for a convention have come from the Electoral Reform Society and the Institute for Welsh Affairs has announced plans “to set up a “crowdsourced” Constitutional Convention to discuss what Wales should ask for in the debate.”
Some recent constitutional conventions have been cited as good models for the UK to emulate, notably Scotland’s which met between 1989 and 1995 and those of the Republic of Ireland and Iceland. However, it may be the case that none of these provide an appropriate model for a UK wide constitutional convention due to issues of membership and timing.
The Scottish constitutional convention, established in 1989, contained representation from trade unions, business, local government, churches and other civil society groups. However, it was not cross-party. The Scottish Labour Party, the Scottish Liberal Democrats and some smaller parties were involved but the SNP withdrew after its inaugural meeting and the Scottish Conservative Party did not join. Through various working groups the convention was able to develop detailed and consensual proposals which would lay the basis for the Scottish Parliament. However, it should be noted that it took six years. It is unlikely that a UK convention could proceed without the involvement of the governing party of the day, or take six years.
The Irish Constitutional Convention was established by the Dáil in July 2012. It was remitted to consider a wide range of matters from reducing the Presidential term of office to five years and aligning it with the local and European elections, to the removal of the offence of blasphemy from the Constitution.
The convention had 100 delegates, 66 of whom were selected as representative of the population of the Republic of Ireland. Details of how they were recruited is explained here. The other 33 members were made up political parties and groups in the Dáil and the Seanad nominated representatives on the basis of their relative strengths in the Oireachtas. Political parties in Northern Ireland were invited to nominate one representative each (the Alliance Party, the Green Party, Sinn Féin, and the SDLP chose to participate).An independent chair was appointed.
The convention first met in Plenary on 1 December 2012 and had to conclude its task within 12 months. Plenary meetings were held on each topic, where the delegates heard from experts and external speakers. They then voted on the issue. Submissions were also taken from the public.
Changes to the Irish constitution need to be ratified by a referendum. The Irish Government must bring proposals for taking these forward.
Iceland is highlighted by some commentators as the exemplar of “crowdsourcing” a constitution. The 2009 Icelandic parliamentary election brought to power a coalition government of the Social Democratic Alliance and the Left-Green Movement. The new government undertook to create a new constitution following a review of broad areas of the constitution.
The Icelandic constitutional process included three distinctive features. The first one was a so-called National Forum—a consultation of 950 demographically representative, randomly sampled citizens. These citizens were gathered in a one-day meeting and asked to list the principles and values they would like to see embedded in the Icelandic constitution. They listed, among others, human rights, democracy, transparency, equal access to health care and education, a more strongly regulated financial sector, and public ownership of Icelandic natural resources.
The second unusual feature was an assembly of constitution drafters selected from a pool of 522 citizens that purposely excluded professional politicians. The third unusual feature was the decision by the 25 constitution drafters selected to use social media to open up the process to the rest of the citizenry and gather feedback on 12 successive drafts. Anyone interested in the process was able to comment on the text using social media like Facebook and Twitter, or using normal email and mail. In total, the crowdsourcing initiative generated about 3,600 comments for a total of 360 suggestions.
A subsequent referendum provided a clear but non-binding approval from the Icelandic electorate. However, the proposals needed to pass as a motion in the Althingi. This has not yet taken place due to a new Government being elected.
The Icelandic and Irish cases raise questions about membership of a UK Convention. Assuming the convention was made up of a mix of parliamentarians and elected or randomly selected citizens would the number of parliamentary delegates reflect the different size of the constituent parts of the UK? Also, how would the citizen element be chosen – from the constituent parts of the UK? How would England’s numerical dominance be reflected? Could the convention be established on a “federal” basis with each delegation having equality and a veto? These are just some of the questions that must be answered in advance of a UK Constitution being established. As Professor James Mitchell, of Edinburgh University, stated in his evidence to the PCSC:
‘Given current constitutional arrangements with devolved governments in three components of the UK, there will be a need to accommodate a territorial dimension in membership. In other words, a Convention that was based solely on population would lose legitimacy in Scotland, Wales and Northern Ireland. On the other hand, a Convention that gave equal representation to the components of the UK state of unions would have little legitimacy in England. Agreeing the composition of the Convention would require compromises of the sort that might be the very subject of its deliberations. Indeed, it might prove as easy to agree on a new constitutional settlement for the UK as on how to constitute any Convention.’