If we are in a constitutional moment, it is time that ‘We the people’ have a right to settle what happens. A Constitutional Convention (CC) is one way to give the people this leading role. A CC is unlikely to refound the British state if it is set up to function as, in effect, an advisory council to the UK Parliament on a relatively narrow range of issues.
The UK is in what the lawyer and political philosopher Bruce Ackerman would call a ‘constitutional moment’.
There are, obviously, deep and urgent questions about the future of the Union and ‘devolution’. There are related questions about the second chamber of Parliament and the election itself is likely to raise again questions over the voting system. There are multiple questions about the role of money in UK politics. There are challenges around surveillance and liberty in the digital sphere. And, not least, there are profound underlying problems with the political economy which has been built through the existing UK state: the fragility and unevenness of economic growth, employment precarity, long-term wage stagnation and housing market inequality. Multiple problems, rooted in the structure of the state, calling for wide-ranging reform at a basic level: a constitutional moment.
If we are in a constitutional moment, then it is not appropriate to let the key questions be settled just through the processes of ‘normal’ politics. Democratic theory says that this is a time when ‘We the people’ have a right to settle what happens precisely because what is at stake is a set of very basic questions about how we are ruled. A constitutional convention (CC) is potentially one way of giving ‘We the people’ this leading role.
A CC could consist of a group of people (200? 300?) who would deliberate over a period (a year? Two years?) about these questions. Membership might include some MPs, but, following the example of the recent CC in Ireland, it might consist mostly of members of the general public, selected by lot but in a way to make the assembly broadly representative of the population. Its deliberations can be structured so that the CC receives input from citizens outside the convention. Its recommendations could be sent to a referendum or referendums.
At this general election, Labour, the Liberal Democrats and the Greens are all calling for some kind of CC. But it is becoming clear that talk of a convention can mean different things.
A CC can be set up so that it has a primary role in settling constitutional questions. Or something called a convention can be given a secondary and subordinate role. In this second case, politicians do much of the heavy lifting concerning new political arrangements through ‘normal’ politics. The CC is then brought in to do additional lifting, within a strictly delimited area, or just to help codify a set of arrangements that in their essentials have already been decided (by politicians).
Some conventions on offer
Which kind of CC are we being offered? Do the offers correspond to what we want or need?
Let’s start with Labour. Labour’s manifesto includes an explicit call for a ‘people-led Constitutional Convention’. Its envisaged job will be to examine certain questions about reform of the UK Parliament following new devolution settlements in the nations of the UK. In particular, it is suggested that the convention will consider (a) reform of the second chamber and (b) ‘how English MPs can have a greater role in the scrutiny of legislation that only affects England’.
At the same time, Labour’s manifesto commits to a set of proposals for further ‘devolution’ in the nations of the UK, including an English Devolution Act.
Note the division of labour here: while the ‘people-led constitutional convention’ gets to discuss the implications of new devolution settlements for the UK Parliament, it does not appear to get to discuss the content of the devolution settlements themselves. In particular, it will not apparently be for any constitutional convention to deliberate the form of devolution within England. Labour has its own ideas about that.[i]
The Liberal Democrat manifesto also proposes a ‘UK Constitutional Convention’. For the Liberal Democrats, the purpose of the convention is to draw up a ‘full written constitution for the UK’. This sounds like quite a broad and open-ended task. However, the idea apparently is not that the convention is to design a UK constitution from scratch but rather to formalise a new constitutional settlement that has, in many of its essentials, already emerged: ‘Constitutional change has taken place rapidly. We now need to make sure all the new arrangements work together coherently…’
Although the Liberal Democrats also envisage the CC considering the question of English votes on English laws in the UK Parliament, the CC they propose sounds to me a lot like a tidying up exercise once the main lines of constitutional settlement have been determined.
Some of our leading constitutional experts also seem to envisage the CC having a secondary and subordinate role. Peter Hennessey, a crossbench peer, writing at ConservativeHome, argues:
‘In my view, it’s highly unlikely that an overarching written British constitution will coagulate…, however first-order and fundamental some of the questions we face. The Scottish settlement will have its statute. There is a strong possibility that Commons procedure will be adapted to facilitate some version of EVEL. There is, too, a definite likelihood of a convention after those developments are properly underway to, as it were, mop up the rest and fashion an overarching constitutional settlement that captures the multiple changes as coherently as possible.
‘For me, such a constitutional convention must approach its task with a particular state of mind about the need to enable both mutual flourishing and a capacity for the UK to think and act together as a Union, as a collectivity amongst all the devolution and decentralisation.’
In this proposal, ‘English Votes on English Laws’ is to be decided on prior to the CC (in contrast to Labour’s and the Liberal Democrat’s proposal to include consideration of it in the CC). Then the CC kicks in to fashion ‘an overarching constitutional settlement that captures the multiple changes [already decided?] as coherently as possible.’ The CC’s job is, as for the Liberal Democrats, to give coherence. Again, the assumption seems to be that a great deal has already been determined outside of the convention – including most of the ‘devolution and decentralisation’? – as the necessary background to its work.
What would a people’s convention process look like?
A CC could alternatively have a more leading role in determining a new constitution. One model is that set out by Anthony Barnett in his open letter to Ed Miliband. Without being overly prescriptive, here are some principles that can guide design of a CC which gives ‘We the people’ more of a leading role.
First, as I think Labour (and the Greens) already accept, membership of the convention – or conventions – should be drawn largely from members of the general public, chosen by lot but in a way that is designed to be broadly representative of the population. (Exactly which population? The standard assumption is that the relevant population consists of UK citizens, but David Owen argues forcefully that non-citizen residents and non-residents should also have representation in a CC.)
Second, imagine that a UK convention is given a wide remit and some power to set its own agenda (and time to develop it). If a convention is to be genuinely ‘people-led’ mustn’t its agenda be responsive to the people? Allowing the convention a wide remit, or allowing it to identify issues for itself, gives us all an opportunity to campaign to the convention to address issues we think important. It draws us all into the discussion and thereby helps to create a democratic constitutional moment.
Third, we need to ask what happens to the recommendations of a convention. The assumption implicit in the Labour and Liberal Democrat proposals, I think, is that in the first (and last?) instance they go to Parliament. Parliament decides what happens next. Alternatively, they could go straight to a referendum or referendums.
Fourth, there is a vitally important question about how a convention process works across different territorial levels. How should a UK-wide convention relate to, say, an English CC? How should an English CC relate to, say, a CC for the English North? We can imagine a convention process, in which regional and national conventions feed into a wider, UK-level convention.
On this last point, there are initiatives already underway. The Institute of Welsh Affairs, for example, has run an online convention on the future of Wales. There is emerging support for a Northern CC within England. A constitutional convention process can and should try to build on these and related initiatives and the energy they represent.
A key principle here is that devolution and decentralisation ought to be bottom-up processes with real accountability to local people. Northern devolution, for example, ought not to be settled just by negotiations between UK and city-level political elites. The citizens of the North have a right to their own say over new arrangements, a requirement that is completely missing from ‘Devomanc’ style deals which are imposed without any local referendum.
A refounding moment?
The referendum in Scotland in 2014 was a tremendous affirmation of popular sovereignty. The people of Scotland faced a hugely important question, over which they really did have the final say. The result was a nation-wide debate about what kind of country Scotland might be. This debate took in not just political questions but issues of economic organization and public policy more broadly. A CC process could offer the other nations of the UK an opportunity to have – to join in – this kind of discussion: What kind of nation/family of nations do we want to be?
But a CC is unlikely to have this effect if it is set up to function as, in effect, an advisory council to the UK Parliament on a relatively narrow range of issues. In this case, politicians will be largely posing and answering the key constitutional questions on the terms they prefer.
In a sense, the way we resolve the constitutional moment before us will itself determine the sort of constitution we get. Process is part of the outcome. An open, citizen-led CC process would in effect refound the UK as a whole on the principle of popular sovereignty. A narrower CC, more beholden to Parliament, reaffirms the sovereignty of Parliament and so retains much more continuity with the historic UK state. Bluntly – it keeps us, the people, in our historic place.
Those of us who are sympathetic to the idea of a CC need to look beyond the term itself and ask: what kind of convention do we want?
[i] “The manifesto text does say that reform of the second chamber and consideration of the role of English MPs is scrutinising English legislation are ‘part of the Constitutional Convention process’ (my emphasis), implying that there might be other issues for the convention to consider. But read in context, I assume these would be issues about reform of the UK Parliament and not about the content of, say, English devolution. My thanks to the Democratic Society for helpfully hosting the party manifestos in one place.’
This post is part of our Decision 2015 series.