openDemocracyUK

Citizens should have the power to call constitutional conventions

While the questions  of who participates and on what topics are critical, I want to throw open a different kind of question: when – at whose discretion - should a constitutional convention be established?

Graham Smith
9 January 2015

There is much debate about the need for a constitutional convention for the UK. The case for a convention is strong: the constitutional settlement is currently in flux with cross-party agreement to devolve further powers to Scotland; the Welsh and Northern Irish assemblies want enhanced powers; and there are calls for devolution to the regions and cities within England and/or an English parliament. Older constitutional issues such as the voting system and the future of the House of Lords remain unresolved.

A great deal of ink is being spilled on the question of what form any convention should take. A concern that a new settlement will be a stitch-up amongst the major political parties and the vibrancy of the referendum campaign in Scotland have energized campaigners to call for a convention that is either constituted fully by randomly-selected citizens (as with the British Columbia Citizens Assembly on Electoral Reform) or one that is a mix of randomly-selected citizens and participants appointed by political parties (as with the Irish Constitutional Convention).

But while the questions of who participates and on what topics are critical, I want to throw open a different kind of question: when – that is, at whose discretion – should a constitutional convention be established?

Even with building political pressure to launch a convention that is fully or partially constituted by citizens, it will be at the whim of Parliament (read the governing party/parties) following the next general election as to whether such a convention is established, its form and the task assigned. But is this the right way for a democracy to decide on the timing of conventions on fundamental matters such as the constitution? Should it be left to Members of Parliament as to when, in what form and on what subject a convention should be established? Are our elected representatives the best judges of when a constitutional convention is necessary?

By its nature, such a convention will potentially reshape the division of political power within the polity. It is a prudent principle of constitutional design that those who are privileged within the current system (and who have strong interests in any alterations to the institutional architecture) should not hold such agenda-setting power. In other words, politicians should not have power over a process that could well further advantage their position within the system. (This is also a central argument as to why citizens rather than politicians or their surrogates should participate in a constitutional convention.)

But how then is a convention to be launched? How are citizens to set the agenda?

The solution lies with the citizen initiative process. That is, citizens should be empowered to call for a constitutional convention. If a petition on an issue pertaining to the constitution collects a specified number of signatures from citizens (or those authorized) within a specified time period, the petition launches a constitutional convention. Citizens would thus be in control of the agenda-setting process for constitutional change.

Petitioning a citizen convention

The use of petitions is most commonly associated with forms of direct legislation in California (and other US states) and Switzerland, where successful petitions generate a popular ballot on potential legislative and constitutional changes. Petitions are also commonly used by a number of parliaments (the UK parliamentary process is unfortunately particularly poorly designed) and local governments, providing citizens with the opportunity to petition their representatives to consider a particular matter. The recently adopted European Citizens Initiative (ECI) scales up this idea: a million signatures from across a number of European member states collected within one year generates a requirement for the Commission to consider and respond to the petition.

The proposal here for a citizens’ initiative to launch a constitutional convention thus represents an innovation in current democratic practice, linking citizen mobilization through signature collection with the launch of a (citizen-based) constitutional convention.

The details of the qualification requirements – the number of signatures required, the geographical spread of those signatures and the time allowed for collection – need to be considered carefully. A low number of signatures over a long collection period would have a negative effect. Conventions are serious political events: as such there would need to be evidence of a significant popular demand. Moreover, like the ECI, requiring a geographical spread of support (a specified number of signatures from a specified number of regions of the UK) is also crucial, otherwise it places those living in the big cities (especially London) at an advantage in terms of signature collection and can generate proposals that unfairly favor particular parts of the UK over others.

Beyond this, it is an open question as to whether this initiative mechanism should be limited only to constitutional issues, or rather become an agenda-setting device for generating a citizens’ assembly on any broad political issue where the relevant number of signatures can be collected. Such assemblies could become a regular part of the institutional architecture of British politics, providing considered reflections by selected citizens on controversial issues of public debate where currently such debate is often highly polarized. While a number of constitutional issues clearly require attention, much of what currently ails UK (in particular, English) politics are not specifically constitutional in nature, but are rather a symptom of how we practice democratic politics.

One obvious advantage of using the initiative is that taking agenda-setting power away from politicians and devolving it to the people responds to one of the central elements of contemporary ‘anti-politics’ – the suspicion that politicians too often act in their own interests. Giving citizens the power to initiate citizens’ conventions and assemblies is one way of instilling confidence and trust and empowering citizens within the political system. The initiative process empowers citizens to set the political agenda; conventions and assemblies empower selected citizens to make constitutional, legislative and/or policy recommendations.

The proposal for a citizens’ initiative to launch conventions and assemblies leaves open the questions of who participates in the forum and whether proposals that emerge should be considered by Parliament or go direct to a public vote (my own preference is the latter). What the proposal offers is a meaningful way for political power to be devolved to citizens: something that all the political parties – at least rhetorically – support.

 

This article is part of our Great Charter Debate series.

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