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Making a New Constitution: The Citizens’ Convention on UK Democracy: Part 2

The Citizens’ Convention offers a welcome space for public sovereignty over our future constitution – but as currently envisaged, risks side-lining vital questions of national and regional autonomy.

Stuart White
4 October 2019
EU and Union flags are waved outside the Parliament to protest against Brexit on November 27, 2018
EU and Union flags are waved outside the Parliament to protest against Brexit on November 27, 2018
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NurPhoto/NurPhoto/PA Images

In the first article in this two-part series, I set out the basic features of the proposed Citizens’ Convention on UK Democracy.

I will now consider its pros, cons, and what needs further work if the Convention is to realise its potential.

As noted in Part 1, whatever happens with the Convention itself, this discussion can help to inform discussion of how to take forward the challenging project of creating a new, codified constitution, with the public at the centre of the process.

On the plus side…

Although I will make some important criticisms below, overall the Convention is a very welcome initiative.

First, it is welcome simply as a concerted attempt to create a space for public discussion of the UK’s constitution. The traditional constitution is rapidly buckling under the pressures of Brexit. Until very recently, however, the pressures of Brexit politics have drawn discussion away from the constitution itself. An initiative which encourages us to take a wider and deeper look at the constitution is very welcome.

Second, the Convention powerfully models the ideal of popular sovereignty over the constitution, at least in some respects. For instance, it aspires to give the wider public an opportunity to shape the Convention’s agenda in the ‘UK Conversation’. A wide range of civil society groups and campaigns might intervene at this stage to try to shape the Convention’s agenda, e.g., on climate justice, on racial justice, on creating an English or a Yorkshire or a Cornish Parliament. In addition, the use of CAs expresses the idea that ‘We the people’ get to formulate proposals, not elites or experts (though expert advice is drawn on as a respected part of the process).

Third, the Convention makes a crucial connection between popular sovereignty and deliberation. For Nigel Farage and Boris Johnson, and their supporters in the press, popular sovereignty simply means the will of a majority voting in a referendum. This is a simplistic misunderstanding of popular sovereignty.

What is missing here is that idea that popular sovereignty is properly guided by a concern for the common good. (This is an idea that I’d argue we find, for example, in Rousseau’s Social Contract.) Related to this, for a political process to express popular sovereignty it must be robustly deliberative in the sense of encouraging well-informed discussion and attention to the interests of all. The Convention’s use of CAs emphasises the centrality of such deliberation to democratic political life. (I am not saying that deliberation and institutions like CAs matter rather than referendums; both matter for genuine popular sovereignty.)

Fourth, the designers of the Convention have grappled constructively with the tough question of how to make a CA-based process work for such a big, potentially open-ended question as ‘What are the key problems with democratic institutions in the UK and how should they be addressed?’

In the early days of the discussion of a UK constitutional convention, many spoke as if we could create a single CA and give it the job of designing a complete constitution from scratch. Critics pointed out that there is no evidence that a CA can successfully handle a question as large and open-ended as this. Successful CAs (such as in Ireland) have focused on narrower sets of questions.

The Convention addresses the resulting challenge by using different CAs at different stages of the process to do different jobs: a CA to help set the overall agenda (stage 2); CAs to work through different items on this agenda (stage 3); and then a final CA to pull the various proposals together (stage 4). It remains to be seen how well this works, but it is a constructive move forward in thinking.

Side-lining the national question

The Convention is obviously a very ambitious project and inevitably there are many criticisms one might make at this stage. Given the fluidity of the political situation, moreover, there is obviously a need for flexibility in running the Convention.

Here I shall focus on one major weakness in the way it is currently structured that threatens to undermine its legitimacy. This is the way the Convention proposes to handle the national question.

The UK’s constitutional crisis is in part centred precisely on the national question: the question of how power and sovereignty are to be shared across the constituent nations and regions of the UK. Although the referendum was lost by the independence campaign, the 2014 referendum on independence in Scotland affirmed the right of Scotland’s people to self-determination – independence is their choice. In its wake, the UK Parliament passed the Scotland Act 2016 and the Wales Act 2017 which assert that their respective Parliament and Assembly are permanent parts of the UK’s system of government, only ever to be abolished on the basis of referendums in the respective nations. In light of these developments it is imperative – both morally imperative, and politically imperative – to think of any continuing UK (if there is to be one) as centred on a new federalist arrangement. On some issues, sovereignty properly lies with the member nation, e.g., Scotland, rather than with the UK. The constituent nations of the UK have rights to self-government and self-determination that also imply a right to exit from the UK.

Given this federalist conception, we need to think of the UK not simply as the site of a single people, but as a federation of peoples, and respect their rights of self-determination.

With this in mind, consider now the following passage from the Convention’s User’s Manual:

‘We considered the possibility of having regional meetings, rather than thematic, in order to allow for a stronger regional focus. However, we concluded that grouping assemblies by region, rather than by subject, could generate competing priorities and unnecessary tension between regions, rather than one UK-level conversation about UK democracy. There is also good evidence to suggest that mini-publics should reflect the demos which they are representing: in this case, the UK population, rather than any particular region.’ (Users’ Manual, 22)

Rhetorically subsuming the national question into ‘regionalism’, this passage states that the whole Convention process is in effect addressed only to a UK demos. The suggested justification is that the issues to be considered are all ‘about UK democracy’ and so it is perfectly appropriate to consult a microcosm of the UK demos, without breaking the process down into assemblies and deliberation by ‘region’.

This doesn’t hold up. Even when we are talking about issues of institutional design at the UK level, we can’t necessarily treat the deliberation and decision as something only for a UK-level demos. Take, for example, the question of how to design a second chamber for the UK Parliament. Many second chambers in other democracies (such as Germany) are structured explicitly to give representation to constituent nations and/or regions. To what extent should a reformed second chamber for the UK Parliament be structured like this? This is surely a question which needs to be discussed in a way that enables the respective nations and regions to present their views. This essential perspective is lost if the whole issue is treated as being only a matter for a UK-level demos.

The same point can be made about the issue of relations between central and local government and ‘devolution’ to England. And what about the issues that have yet to be identified for the Convention to consider? And, of course, all the issues are intertwined, making it impossible to isolate any issue as ultimately only for UK-level demos.

The problem becomes even clearer once we consider the practicalities. The Thematic CAs will have 50 members each. On a population-proportionate basis, this means each of the CAs will have something like 42 people from England, 4 from Scotland, 2 from Wales and 1 (!) from Northern Ireland.

What is to be done?

Given that the Convention’s User’s Manual issued in August is a draft for consultation, there might still time to address this weakness. If so, what might be done?

I don’t doubt the practical challenge of trying to disaggregate the Convention by nation and region as well as by theme. It could be very expensive, and resources are not limitless. Here are some suggestions to get a discussion started.

First, as a very basic minimum, the Thematic Assemblies should not be arranged on a population-proportionate basis with respect to nations and regions. There needs to be statistical overrepresentation of Scotland, Wales and Northern Ireland (and careful thought given also to the representation of different English regions).

Trying to get effective representation of all nations and regions is always going to be difficult in assemblies of 50 people, however. So perhaps the size of the assemblies should be increased? This of course raises the cost of a given assembly. But given the resource constraints, perhaps it makes sense to have fewer Thematic Assemblies, handling fewer issues overall, if these can be bigger and thereby more effectively representative of nations and regions?

If the Thematic Assemblies can be made more effectively representative of nations and regions, then perhaps the organisers should consider also how participants within the Thematic Assemblies might be supported to meet sometimes on national and regional lines in the course of their work. Careful attention should also be given at the testimony stage of the Assemblies to make sure that a range of national and regional voices is heard.

Another possibility is to consider how an ‘Assembly of the Nations and Regions’ might be integrated as a distinct CA in the process at one or more stages. This would be a CA which is deliberately constituted to give much stronger representation to smaller nations and regions than they would get on a population-proportionate basis. It thereby directly models the federalist picture of the UK as a federation of peoples. Could the ‘UK Summit’ at the end of the Convention process be reconceived along these lines?

These are just suggestions, and there might well be other, much better ways of addressing the issue of national and regional representation (which itself is, of course, only one issue of representation).

Moving forward

As things stand, the Convention is apparently resurrecting a very old-fashioned ideal of the UK as a unitary state. This is philosophically regrettable, and also risks alienating large bodies of democratic opinion and energy in some nations and regions, shutting them out of the process. Rather than being the bold step into the future it aspires to be, the Convention risks becoming a nostalgic, English-dominated exercise in trying to recraft the UK.

Johnson’s contempt for Parliament makes all the clearer the need for a thorough review and renewal of the UK’s tottering political constitution. This needs to be a process with the public centre-stage. The proposed Citizens’ Convention on UK Democracy offers in many ways a promising template for how to get going with this project.

It has not yet found a way to respond to all the key challenges. But as a constructive starting-point for an increasingly urgent discussion, it is an important step forward.

                                                                                                                                                        

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