affiliated to the International Association of Constitutional Law
Last week, the House of Commons Political and Constitutional Reform Committee published their report, Do We Need A Constitutional Convention For the UK? (HC 2012-13 371). It is an interesting document, mainly because its very existence shows that the idea of a constitutional convention is becoming more mainstream within Westminster. But the report raises many questions, not all of which are fully answered. The central thrust of the report is that considering the raft of changes made to the constitution since 1997, particularly devolution, ‘it is time to conduct a comprehensive review so that the Union can work well in the future’ (para 111), and that this review should take the form of a ‘constitutional convention to look at the formal constitutional structure of the UK’. Matthew Flinders in his evidence provides the rationale for undertaking such a review now, stating that
‘the constitutional fault-lines that have always existed within the Westminster Model have arguably grown into significant gaps – possibly even chasms – as a result of recent reform. The old constitutional rules and understandings through which politicians and the public made sense of the political sphere no longer seem to apply. Moreover a number of issues on the political horizon – not least a planned referendum on Scottish independence – are stretching the constitutional elasticity of the Westminster Model to breaking point.’ (para 33).
Whilst ultimately leaving the issue open, the Committee suggest that the convention would have a particular focus on the relationship between the ‘different elements of the UK and how it functions as a whole’, but the English Question, ‘the fact that England…outside London does not have its own devolved settlement – must be addressed first’ (para 113). The concern of the Committee is the asymmetrical nature of devolution, and the ‘gaping hole’ of England. Whilst the timing of these things is perhaps never ideal, especially at the moment with so many issues in flux, it is unfortunate that the Committee published its report without considering the proposals of the McKay Commission on the ‘West Lothian Question’ – the most manifest pressure on the constitution that asymmetrical devolution creates. (The McKay Commission has been discussed by Mark Elliott.)
Strengths & Weaknesses
The report should be welcomed as a rare example in British constitutional debates – politicians thinking ahead. The Scottish referendum, to be held on 18th September 2014, will increase the pressure on the union, whatever its result. If the vote is yes, then a substantial part of the Union will withdraw and if the vote is no, ‘devo-max’ has been promised, but will place the unitary nature of the Union under more strain. The problem with this example of future cartography, is that it is unclear what the issues will be. The consequences to the rest of the Union of a Scottish withdrawal will remain elusive until the terms of that withdrawal become clearer. Likewise, ‘Devo-max’ is still a slippery concept. Much may depend on the result of the referendum. If independence is soundly defeated, then pressure for significant change could be less than it currently appears.
These uncertainties lead to the Reports main weakness: namely, it is difficult to provide examples of the sort of issues that a UK wide constitutional convention on the future of the Union could resolve. The firmest proposal that the report makes is to consider the devolution of financial powers to English local government, but it is not clear that a uniform settlement is needed across all the devolved institutions and English local government, which would be the real value of a UK-wide constitutional convention. Indeed, the report is rather sanguine about the prospect of federalism, which would be a logical rationale for a UK-wide convention (paras 48 – 53). As Alan Trench states, what ‘is vital for Wales is of much less importance in eastern England. To the extent there is a ‘Scottish’, ‘Welsh’ or ‘north-east English’ interest in the Union, each of these different’
Alternatively, a UK convention could be a more technical exercise that ‘tidied up the loose ends of devolution’, which would see how the relationship between the different institutions could be improved (see John McCallister MLA, para 35). If this is the case, there seems little to be gained with a constitutional convention over the more traditional method of a Commission to consider these technical issues. Commissions have been used extensively as the main driver of change in devolution, with the Richard Commission directly led to the Government of Wales Act 2006, the Calman Commission led to the Scotland Act 2012 and the Silk Commission in Wales is ongoing.
If the desire is for a technical tidying up of devolution arrangements, this does not appear to fit with the use of constitutional conventions so far. The international use of conventions has so far developed into two categories. Firstly, they are used to devise a new constitution for a state (such as in Iceland), or, conventions are used to discuss a particular issue (for example the Citizen’s Assemblies on Electoral Reform in British Columbia and Ontario). The proposal of the Committee somehow falls in-between these two categories. As a convention would be an experimental device in the UK, and no convention has been held in a political unit the size of the UK some care should be taken for a convention not to be too novel.
For this reason, there seems to be a greater argument for a constitution convention on House of Lords Reform (a point made in written evidence by Michael Gordon and Brian Thompson of University of Liverpool). This would be consistent with the use of conventions abroad, and fulfills the rationale behind a convention, which is to increase the range of ‘inputs’ into the constitutional change process beyond the government of the day to not only other political parties but to those who will be subject to the new constitutional structure – the people. The use of conventions reflects these twin needs. Parties across the political spectrum need to have confidence in the viability of a constitutional structure to foster stability, and that the people can confer legitimacy on new constitutional structures, to the extent that sections of the public are willing to accept perceived negatives decisions from the new structure. If a convention is to merely tie up the loose ends of asymmetric devolution, a convention is not necessarily required to fulfill these twin needs.
The Real Issue: The Process of Constitutional Change
The real issue that lurks in the background of the Committee’s report is not really the structure of asymmetric devolution, but an increasing dissatisfaction with the process of constitution change, which created the situation in the first place (this was considered by the House of Lords Constitution Committee in its report, The Process of Constitutional Change (HL 2010-12 177). The main problem is that despite all the changes enacted since 1997, there has never been a holistic look at how the changes affected the constitution as a whole. Indeed, shortly after the 1997 General Election, the incoming Labour Government rejected the very idea of a White Paper discussing its constitutional change agenda in an overarching fashion. No Minister was given overall responsibility for the constitutional reform agenda and the idea of a declaratory White Paper ‘embracing, describing and linking the whole rolling process’ was decided against (Peter Hennessy, The Prime Minister – The Office and Its Holders Since 1945 (Penguin 2000)).
This approach has now started to reveal its flaws – the issues surrounding the sustainability of a post 2015 Government relying on Scottish seats for its majority are vividly described here. The suggestion for a constitutional convention is ultimately delayed a reaction to this, but could be addressed at the wrong target at the wrong time. If anything, a constitutional convention considering asymmetric devolution should have been convened before devolution was enacted.
Conventions and English Regionalism
To this extent, the report is on safer ground when suggesting a ‘pre-convention’ or forum to consider English local government. Perhaps the Committee should have gone further and suggested a full-blown convention for English local government. It would comply with the rationales for a convention indicated above. However, the idea of regionalism is rejected outright in the report on the grounds that there is no appetite for another layer of politicians (para 14). This perhaps can be explained in the context of the poor public finances and the lingering shadow of the MP expenses scandal making the prospect of more politicians an unlikely one. But the Committee is at risk of falling into the same trap as the current and previous Governments who viewed the rejection of Local Mayors and Regional Assemblies as a rejection of the very idea of regionalism.
Yet this is not necessarily case. The one occasion a robust scheme was proposed in England, it was comprehensively approved in a referendum – in London. Whilst this could be due to the particular characteristics of the capital, there is some support for similar structures outside London. During the May 2012 referendum on an elected Mayor in the City of Manchester, opinion polls showed more support support for a Mayor across the Greater Manchester area on the London model, than the Mayoral proposal on offer which was rejected
One of the advantages of a constitutional convention is that it is an opportunity for some fresh thinking on issues which have proved beyond resolution by the more regular constitutional change mechanisms. This is another reason that makes House of Lords reform is a prime candidate for a convention. By increasing the ‘inputs’ into the process, it allows for options that have fallen outside the purview of politicians to be considered. For example, the Calman Commission through its public engagement processes found that the role of the Crown Estate in Scotland was a far more important issue for people than politicians’ realised. Conventions also allow for the thorough consideration of issues, something that was lacking in the years following the 1997 General Election. It just could be that a constitutional convention held on a regional level could be the way to bring English regionalism fully to life. At least this way, it could be put to the people.
However, holding a constitutional convention on such an issue necessitates making certain choices. The decision at which level to hold an English constitutional convention, (a Local, Regional or England-wide level) could be viewed as impliedly prejudging the conclusion of the convention. If it is held on a England-wide level, is that precluding a more local solution? Does the holding of a convention on a regional level preclude the option of devolution to the North of England? (The Hannah Mitchell Campaign Organisation are campaigning on this very issue.) When the demos and territorial scope of an institution are itself up for discussion, the creation of a convention itself needs to be very carefully considered (Stephen Tierney, Constitutional Referendums (OUP, 2012). This is where the Committee’s idea of a pre-convention could be useful. An example can be drawn from New Zealand, where the Constitutional Advisory Panel is currently engaging with the public by asking for the views of the public of possible areas of the constitution that they feel may need change It could be that a similar sort of process could be useful to frame an English constitutional convention.
The other main choice is the composition of a convention. There are three elements that could be reflected. Politicians are the most obvious element, as they work daily within the existing constitutional structure and have a direct interest in any new constitutional structure. But this direct interest is also self-interest, as change is rarely desirable amongst those already in positions of power. A barrier to English regionalism is that both Westminster and local councils could see regional institutions as a new competing powerbase. For this reason, expertise is the second element, as the assumptions and interests of politicians can be challenged. Expertise clearly includes experts from academia and public policy, but it can also be more broadly defined to include representative groups such as business organisations, trade unions and religious institutions. This element can also bring different perspectives on the issue, including international comparisons. The Australian Constitution Convention in 1998, held to consider whether to retain the Queen as Head of State combined these two elements, with half being politicians elected onto the convention, and the other half being appointed experts. The final element is the people themselves. In principle this is consistent with the rationale of holding a convention, in that public involvement allows the people to confer legitimacy onto a new constitutional structure. Also, if the proposals are to be put to the broader electorate in a referendum, then people may have a greater degree of trust in the proposal, if members of the public have been involved in devising the proposal. Usually, representation of this element has been through (largely) random selection, as in the Citizens’ Assemblies on Electoral Reform in British Columbia and Ontario.
The Citizens’ Assemblies in British Columbia and Ontario both saw their proposals falter in referendums (although in British Columbia 57.7% supported the proposal, but it was short of the 60% threshold). This raises two questions. Firstly, whether a convention with different elements in its composition would have arrived at a proposal, which would have proved more appealing to a greater portion of the electorate. Or, whether you have to accept that however a convention is composed, sometimes the issue is too intractable for it to be resolved on that occasion. The second question is that if proposals are to be put to a referendum, then as much focus should be attached on the rules and conditions of the referendum as there is on the convention that frames the question.
Short of an Ackerman-esque major ‘constitutional moment’, the perennial difficulty with constitutional change is the limited desire amongst the general public for constitutional change and debate. Experiments aimed at increasing engagement with politics in general have been met with limited success. For example, the 25% turnout at the open primary in Totnes before the 2010 election did not ‘indicate a zealous public chomping at the bit to get involved’ (Ruth Fox, ‘Engagement and Participation: What The Public Want and How Our Politicians need to Respond’, 62 Parliamentary Affairs 673). The Hansard Society’s Annual Audit of Political Engagement consistently shows that around 50% have little interest in politics. However, a convention would be entirely new to British politics and its novel nature, could spark a greater level of interest, particularly if it tapped into the prevailing dissatisfaction with politics and involved members of the public.
Iceland’s Constitutional Council provides an interesting example of a particularly high level of public engagement (the report discusses Iceland in paras 24-27). After a National Forum of 1,000 citizens discussed themes for a new constitution, the Constitutional Council, was created with 25 citizens elected to draft the new constitution. An interesting feature of the Council’s method was its use of the internet to engage with the public. The Council posted draft articles on the internet and social media, inviting public comment and then posted redrafts taking account of the comments received. Council meetings were broadcast on the television and internet. After being approved in a non-binding referendum, the constitution is awaiting ratification. Whilst there are major differences between Iceland and the UK – Iceland’s population is around 320,000, compared to the UK’s 60 million, elements of the three-stage process of a general meeting, elections and engagement could be a useful process for future reform mechanisms. The method of using the internet to allow discussions of draft articles is particularly interesting as it would allow the broader public to scrutinise proposals. For more on Iceland see Thorvaldur Gylfason, ‘From Collapse to Constitution: The Case of Iceland’, CESifo Working Paper No. 3770
Finally, the report makes an interesting hint. It suggests that the use of a convention with an open remit could struggle to reach conclusions (para 81). This is almost certainly correct. If a convention with an open remit to consider the issue of the relationship between the devolved institutions would struggle, it raises the issue of how appropriate a convention would be to codify the UK constitution. Given the complexity of such a task, it could be that the best use of the convention method would be not to have one convention, but several conventions. Each convention would consider a different aspect of a codified constitution, possibly operating with other procedures, where appropriate, and all being subject to one overarching body co-ordinating the whole process. It must be noted that having several conventions or bodies, whilst logical, could have difficulties in engaging the public across the different procedures, bodies and conventions. Clearly, this is a consideration for another time, particularly as the Committee is considering this very issue, with its inquiry into Mapping the Path to Codifying or Not Codifying the UK Constitution.
By offering something new to the constitutional change process, constitutional conventions have a potential role in resolving constitutional issues, which have eluded the more traditional methods. The Reports main value is in identifying constitutional conventions as a method for constitutional change that should be pursued. However, the report has possibly approached the issues in the wrong order. Conventions need to be examined first, and it needs to be establish how conventions can be used as a sound and viable process in the UK. Only then can you consider for which issues a convention would be appropriate. House of Lords reform is clear case, as the ordinary processes of constitutional change have broken down time and time again. The future of the Union and the English Question are two further candidates, but it is too early to be definitive about this. Wait until 19th September 2014.
Craig Prescott is a Teaching Assistent and Ph.D student at the School of Law, University of Manchester.
Suggested citation: C. Prescott, ‘The Union, Constitutional Change and Constitutional Conventions (and English Regionalism?)’ UK Const. L. Blog (3rd April 2013) (available at http://ukconstitutionallaw.org)