Why codifying our constitution and a Citizens’ Convention won’t resolve our political crisis

Reformers need to start thinking differently about constitutional change if they want to build a meaningful democratic framework for the twenty-first century.

Richard Elliott
24 October 2019, 6.00am

A month ago today, the Supreme Court annulled the prorogation of Parliament. From a constitutional perspective, it seems a political earthquake, the aftershocks of which are still being felt. But the tectonic plates of British politics have been shifting for a while. Ongoing paralysis over Brexit, Boris Johnson’s unusual prorogation, and subsequent legal challenges in England, Scotland, and Northern Ireland have brought the problems of an ancient and unwritten constitution to the fore. Britain now finds itself in the midst of what American legal theorist Bruce Ackerman in his masterly We The People calls a ‘constitutional moment’ – a period of heightened public debate about the need for foundational political reform.

In the days after Parliament was prorogued, the Speaker of the House of Commons, John Bercow, announced that he had been persuaded of the need to transition from a conventional framework (long seen as the foundation of British Parliamentary democracy) towards a written constitution. And he was not alone. Following the Supreme Court’s ruling that the Prime Minister’s use of ill-defined prerogative powers was ‘unlawful’, voices from both sides of the House were raised in support of a complete overhaul of the existing political system. On the day the Commons reconvened, Attorney General Geoffrey Cox expressed his sympathy for Green Party MP Caroline Lucas’s declaration that the time had come to ‘consider urgent proposals for a written constitution’.

What is the best way to draft a new constitution?

The growing demand for reform raises one really important question: what is the best way to draft a new constitution?

In the 2010-15 Parliament, a Select Committee on Political and Constitutional Reform was created to consider precisely this question. The Committee’s report highlighted the drawbacks of Bercow’s preferred approach – a Speaker’s Conference or a Royal Commission – noting that such a top-down approach may lack democratic credibility. And it outlined a series of alternative approaches to the problem, including a narrow reform process led by MPs, and a much broader reform process led by members of the public without partisan interference – a Citizens’ Convention.

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Four years later, with Britain in crisis, the idea that the public might play a role in drafting a new constitution is being taken very seriously. Anthony Barnett and Stuart White have each made the case for the Citizens’ Convention as a democratic route to codification in recent articles for openDemocracy. And there is a lot to be said in favour of this approach.

A Citizens’ Convention brings together a representative sample of ordinary people from all around the country to debate the issue of constitutional reform, reflect on expert testimony, and come up with a new written constitution. It is more obviously democratic than a Parliamentary procedure. It is not driven by the partisan incentives of the party system. And it circumvents widespread discontent with politicians on both sides of the political spectrum.

In addition, the Citizens Convention’ is no longer seen as a strange and novel proposition in British politics. Conservative leadership contender Rory Stewart came to the public’s attention earlier this year by floating the idea of a citizens’ assembly to resolve entrenched divisions over Brexit. At the other end of the spectrum, the Green Party has consistently called for a Citizens’ Convention to oversee constitutional reform in their last few General Election manifestoes.

Other MPs are much more sceptical. Critics of a Citizens’ Convention object that the public lacks the expertise required, and that this process might simply delay Brexit or interfere with politicians’ ability to translate the democratic will of the people into sound political action.

However, in the last few years, Citizens’ Conventions have been used to address divisive political issues (in the abortion referendum in Ireland in 2018) and to draft new constitutions (in Iceland in 2010-11). A carefully-structured Citizens’ Convention aims to avoid partisan bias and prejudice by asking participants to discuss the issues with people from different backgrounds and different perspectives.

And yet, despite its promising track record, campaigners have been too quick to embrace the Citizens’ Convention. For there is a more fundamental drawback to this approach. The Citizens’ Convention cannot resolve Britain’s current constitutional crisis because it does not address the core problems of the current system – problems that constrain how we think about democracy and what we, as citizens, are empowered to do within political life.

The politics of individual preference

The idea of a Citizens’ Convention is motivated by the principles of free discussion, respect for opposing opinions, and thoughtful decision-making that political theorists have termed deliberative democracy.

Deliberative democrats – such as Joshua Cohen and James Fishkin – highlight the importance of debate wherever popular rule has flourished throughout history (from the ancient Athenian Assembly to the early modern English Parliament). They argue that our current system of parliamentary democracy allows deliberation to be overshadowed by the voting process.

Under the current system, politics aims to aggregate individual voters’ preferences in a democratic decision process (a referendum or a general election). Politicians appeal to citizens’ preferences (and prejudices) in the race to win a majority, intensifying partisan competition and undermining democratic deliberation. By contrast, under deliberative democracy, politics is concerned with the formation (rather than the aggregation) of preferences. In the case of the Citizens’ Convention, focus is shifted onto members of the public discussing policy issues with one another.

But ultimately, the deliberative approach is still constrained by the same theoretical framework as the system it critiques. Deliberative democracy is less focused on how meaningful democratic positions are generated by a political community than on how to aggregate a series of individual ideas and opinions into a rationally-motivated consensus. The Citizens’ Convention demonstrates this quite clearly: members of the Convention act as representatives of the general public, debating policy issues and combining public preferences into a ‘shared’ constitutional settlement.

In the context of Brexit and Britain’s current constitutional crisis, it is difficult to see how this deliberative approach could work. Treating democracy as a way of consolidating preferences is simply not a viable solution. The 2016 Brexit referendum revealed a 52-to-48 split in public opinion on the issue of leaving or remaining in the European Union. Three years later, Britain is more polarised than ever, with little evidence of support for middle-ground compromises like Theresa May’s Brexit deal.

Meanwhile, leave and remain identities have come to dominate opinion on constitutional issues, framing how voters view the constitutionality of Parliament’s refusal to agree a deal and the Prime Minister’s unlawful prorogation of Parliament. Last month, a YouGov poll found that voters were less likely to see prorogation as unconstitutional if they voted leave instead of remain.

A Citizens’ Convention designed to cut through the deadlock and help draft a new constitutional settlement cannot give people on both sides what they need – a satisfactory compromise, and the feeling that the democracy they are living in is meaningful. The risk is that for many, the raw accounting of the popular will in a referendum will trump any claim to the popular will that a more deliberative Citizens’ Convention tries to make (and the 2016 Brexit referendum will almost certainly become a proxy for resistance to the new constitution).

Even if the public are widely consulted – even if there is a confirmatory referendum on any new constitution at the end of the process – only a small proportion of the population will be willing to invest emotionally and intellectually in the new political settlement when it is built upon the delegation of decision-making to a select few. Many more will continue to invest far more heavily in dominant cultural and political identities – like Conservative and Labour, or leave and remain – and continue to cry betrayal, corruption, or stupidity when faced with new challenges.

A more radical approach is needed. Reformers must strive to establish a meaningful democracy, rather than a system defined by the politics of identity or by the raw aggregation of votes.

Meaningful democracy

It is worth reflecting on what makes a democracy meaningful, and why this might cause us to think twice about the next steps forward for constitutional reform.

For democracy to be meaningful, members of the community must work together to constantly reaffirm or reform the rules of political engagement. A political community that encourages many different forms of democratic activity in everyday life ensures that all citizens are able to participate in the creative process of rebuilding political ideas and institutions: to generate a rich grammar of politics, defined by a sense of collective political agency.

The Citizens’ Convention certainly does encourage more meaningful engagement with constitutional change than a Speaker’s Convention or a Royal Commission. But because it continues to tie the reform process to the consolidation of preferences, it will always miss the underlying importance of democratic activity.

A lasting political settlement that is built on the promise of counting preferences and making preferences count cannot avoid creating losers, building resentment, and entrenching partisan political identities. This leaves citizens vulnerable to the appeal of unscrupulous demagogues and party elites. By contrast, a reform process that is grounded in grassroots democratic activity offers citizens the opportunity to reframe the debate, experiment with new ideas and new forms of participation, and bypass the entrenched authority of powerful political actors.

Though it would probably be a step up from the paralysis we see today, a written constitution drafted by a Citizens’ Convention would act as a monolithic symbol of the popular will, discouraging citizens from constantly trying to rewrite the rules of political engagement through democratic activity.

Ultimately, then, the campaign for a Citizens’ Convention puts the legal process of codifying the constitution ahead of the democratic reconstruction of society. It threatens to capitalise on Britain’s ‘constitutional moment’ without investing in the democratic potential of the political community. Reformers need to break out of the theoretical constraints of the current system before they can resolve the current political crisis and begin to build a better, more meaningful democracy.

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