Deliberately Europe

The Convention on the Future of Europe, set up by the Laeken European Council in December 2001, has since its outset been steeped in debates revolving around the so-called ‘legitimacy crisis’ or ‘democratic deficit’ of the European Union (EU). Since the Maastricht Treaty was so problematically ratified, there has been much discussion of Europe’s opacity, and the role (and deficiencies) of the European Parliament. But, first and foremost, "Brussels’ detachment from its citizens" has been at the forefront of public, political and academic disquiet.

Consequently, the way that the EU’s Treaty base is reformed has come under particular scrutiny, rising to a crescendo over the notorious December 2000 European Summit in Nice, which has become the epitome of untransparent manoeuvring, dominated by national interests and power politics, and generating sub-optimal results.

The Convention, set the task of exploring Europe’s ‘constitutional future’ on a broad and inclusive basis, must be seen as a reaction to these developments. It is the first time that an Intergovernmental Conference (IGC), taking place in 2004, has been prepared by a body allowed to tackle the EU’s constitutional foundations – including Europe’s aims and purpose, the distribution of competences or the status of the Charter of Fundamental Rights. A hitherto unknown level of resourcing, as well as public attention, reinforce the novelty effect.

Much has been written about the Convention’s task, composition, and chances of success. Democratic hopes tend to concentrate on the ‘post-constitutional stage’, and the Convention’s plans for what Kirsty Hughes has argued in openDemocracy should be ‘substantive democratisation’. Speculation will also focus either on Giscard’s idea of the possibility of a ‘Congress of the People’ (so far, a very vaguely defined new institution bringing together national parliamentarians, yet without legislative competencies), or on the Draft Constitutional Treaty’s Article 34, which aims to ‘set out the principle of participatory democracy’ and claims that ‘the institutions are to ensure a high level of openness, permitting citizens’ organisations of all kind to play a full part in the Union’s affairs’.

Yet, although the Convention may well suggest substantial reform of the EU’s institutional and democratic set-up, I would like to redirect some attention to the decision-making processes within the Convention itself, and pose three questions about how far this part of the process, as opposed to its ‘post-constitutional stage’, follows a logic of ‘deliberation’.

First, what are the conditions underlying the model of the Convention as a deliberative ‘public forum’? Secondly, to what extent do they govern the Convention’s internal decision-making dynamics? Thirdly, what repercussions are the processes of deliberation within the Convention likely to have on a nascent European public sphere?

A European public sphere

These questions swiftly take us into related discussions about the lack of a transnational public sphere and the potential for deliberative democracy at the European level – a debate that has recently captured the attention of such renowned scholars as Jürgen Habermas, in his quest for a European Constitution, and Thomas Risse, a leading German political scientist, who defines a functioning public sphere as the core prerequisite for modern democracies.

These, Risse argues, strongly rely on multiple interactions between private actors from civil society and public authorities, as well as on an open, pluralist and critical discourse in an independent public media. Turning from the national to the European level, it is the absence of just these sorts of preconditions which is so frequently lamented – one need only look at Europe’s linguistic diversity and at the absence of a ‘thick’ collective identity, not to mention truly transnational political parties and media.

Analysing such a ‘European public sphere’ in more detail, Risse suggests that there are three factors which need to work: the first is the ‘discursive interconnectedness’ of Europeans treating each other as ‘legitimate speakers’; the second monitors the level of transnational media coverage of specific political issues; and the third covers remaining areas of communicative interaction, such as symbolic mobilisation, public bargaining or the ‘logic of the public forum’ – full-blown deliberation.

It is this last element that I would like to analyse more closely, to see if genuine deliberation in the Convention might, in turn, impact on Europe’s emerging public sphere.

Problem-solving citizens

‘Deliberation’ as a distinct mode of democratic decision-making (and as opposed both to bargaining and voting) can be defined as a process of problem-solving by discussion among free and equal citizens.

This mode of communication is characterised not only by the free, equal and open exchange of opinion, but by the possibility of exchanging and even transforming preferences. In terms of content, deliberative processes are often turned to in order to help redefine the most fundamental and moral dimensions of a polity.

A ‘deliberative EU Convention’ would, accordingly, show less of the functional characteristics of an institution set up to prepare the subsequent IGC, and more of a public forum in its own right, engaging in a truly transnational debate about Europe’s normative and political order. Rather than bargain on the basis of fixed national interests and preferences, Convention members would be encouraged to debate what Habermas calls the ‘common value orientation’ of a system in urgent need of renovation.

However, such a process of deliberation is crucially dependent on an environment susceptible to processes of argument and persuasion. According to Habermas, such an ‘ideal speech situation’ would require participants in the exchange to be open to challenge, which would in turn require that relationships of power and social hierarchy were secondary. For this to be possible, an institutional setting for the Convention that favoured intensive interaction would also be necessary.

A Convention even approximating such an ideal remit, would involve national representatives and parliamentarians who did not expect to stick to fixed preferences; open and equal access to the debate regardless of power and status and a Convention mandate open to prioritising the facilitation of interactive debate.

When it comes to ‘deliberative constitution-making’, the American scholar, Jon Elster adds further criteria for success, such as the special convening of an assembly for deliberation, the absence of an overriding institutional self-interest, and a favourable mix between publicity and secrecy – all despite the inherent tension between discussion and timely decision-making. Lastly, the ability of a body to recognise itself as deliberative in nature, may substantially impact on the arguments evoked.

Does the EU Convention pass the test?

The EU Convention came together in what may be described as accumulated crisis conditions. The European political system is fundamentally challenged by the need for redefinition to cope with its enlargement eastwards, and the resulting institutional, political and financial pressures. In addition, increasingly since Nice, it has to deal with a negative climate of public opinion. Hence the Laeken Declaration’s underlying aim: the need to generate as broad and as inclusive a debate on Europe’s current challenges as possible.

The breadth of the Convention’s mandate can accordingly be seen as a rare chance for deliberation. Convention members are required to comprehensively assess Europe’s normative and political foundations: in Jürgen Habermas’ words, they are invited to go into ‘symbolic depth’. They may raise a whole series of fundamental questions in whatever order of priority they choose, having been granted substantial freedom to design their own procedures, with the sole requirement that they fulfil their core task of in-depth reflection on the matter in hand. Unintentionally perhaps, the Convention experiment precisely offers the chance for an open and equal debate.

There are, of course, some problems. One of these is the ill-defined relationship between the Convention’s output and the IGC to follow. Then there are the ongoing national decision-making and power struggles taking place outside the Convention, at such events as the European Summits in Barcelona (June) and Brussels (October). Questions have been raised about the rather superficial involvement of civil society in the Convention’s proceedings. Last but not least, there are real doubts about the Convention’s capacity to connect with the broader European public and media.

So far, at least two problematic issues have been directly tackled within the Convention. At an early stage, fearing that an intergovernmental Presidium would dominate proceedings, its members fiercely debated the Presidium’s role, as well as that of the Convention Secretariat, which appeared to be taking on the character of Giscard’s bureaucratic eminence grise. Moreover, scandals surrounding a leaked draft constitution during the summer soon quietened down when it was seen that the Presidium’s Draft Treaty published on 28 October allowed more than adequate space for further debate in the plenary.

One remaining problem is, of course, timing; deliberation may take time which the Convention with its tight schedule of roughly thirteen months may not have, a concern already voiced by Giscard.

However, the Convention’s three-stage process of internal decision-making offers a potentially fruitful environment for deliberation. The devotion of the first four months to a so-called ‘listening phase’ allowed for an open exchange of (national) positions and perceptions, laying the necessary groundwork for the discussion and drafting stages to follow. The discussion stage itself, combining expert working groups and public plenaries, permits precisely the mix between secrecy and publicity mentioned above. And finally, when it comes to drafting the Convention’s final text, the chosen decision-making mode, which is based on consensus and precludes coercive voting mechanisms, can be expected to follow a deliberative logic.

Test-bed for Europe

However, the most experimental and promising feature in this rather unique process may well be the Convention’s truly transnational composition. It not only brings together different national backgrounds, but mixes the experience and conviction of member states and accession countries alike: domestic and supranational, governmental and parliamentarian. Maybe the crucial outcome of the Convention will be the example it offers of a genuinely ‘post-national’ discussion of Europe’s constitutional issues, together with its public visibility as a ‘test-bed’ or ‘microcosm’ for trans-European communication on a grand scale.

Such a deliberative mode of communication could in turn facilitate the added dimensions posited in Thomas Risse’s ‘European public sphere’. One might confidently expect Convention members to become socialised into recognising each other as legitimate speakers from different national backgrounds. Moreover, their constitutional deliberations should be sufficiently interesting to attract at least some national media attention and coverage.

Deliberation within the Convention could indeed have the ‘catalysing impetus’ Jürgen Habermas identifies as crucial to a constitutional debate, triggering a virtuous circle of post-national communication and the construction of citizenship. It may indeed be the case that these three outcomes together – an exercise in deliberative interaction, the gathering of European speakers who recognise each other as ‘legitimate’, and cross-national media coverage – rather than its proposals for institutional reform, will come to constitute the Convention’s main contribution to European democracy.