David Melding says a Constitutional Convention should follow if there is a No vote in the Scottish referendum
In succeeding against the odds to forge a union, the assembly of American politicians who met at Philadelphia in 1787 received the supreme accolade Founding Fathers. Their Constitutional Convention became the classic example of statecraft and it continues to inspire reformers to this day.
Successor constitutional conventions have been less iconic in our faster and more democratic age. Nonetheless, reflecting on a number of recent Conventions and analogous events we could do worse than settling on a definition that they are constitutional moments outside the ordinary political process. But what are the ingredients that make some Constitutional Conventions work and others fail so disastrously?
The Reformed Union: Britain as a Federation
This is an introduction to the final chapter in the online serialisation we are publishing (here) of a new book by the Deputy Presiding Officer in the National Assembly, David Melding AM. Entitled The Reformed Union: Britain as a Federation, the book has been serialised in six chapters at regular intervals during 2012-13, continuing with Chapter 6 today:
Online serialisation of a book in this way is a first for ClickonWales and demonstrates the new directions that dissemination of serious thinking through the social media is taking. Responses to this sixth and final chapter are welcome and can be posted in the normal way. David Melding now intends to rework the material in light of the comments and criticism he has received. A complete and revised, online version of the The Reformed Union: Britain as a Federation will be launched by the IWA at an event in London in late September, one year ahead of the independence referendum in Scotland.
This online publication is a follow-up to David Melding’s earlier work Will Britain Survive Beyond 2020? published by the IWA in 2009, and available here.
Not all of the following components will be present with full force in any particular Convention, but the absence of more than one of them is likely to compromise the process.
The electorate must believe that a constitutional issue of the highest order is at stake and, without its resolution, the very existence of the state might be threatened. A Constitutional Convention – just like a referendum on secession – is not part of the ordinary political process.
The US Constitutional Convention met this criterion because the founding fathers recognised the vulnerability of the republic to external attack. Only a strong, if limited, central government could hope to defend the 13 states from European interference. Iceland’s economic crisis created the existential anxiety needed to question basic constitutional principles, although the recent election of a new government may undo the Convention’s success. Australia’s Constitutional Convention saw its proposals for a republic rejected because the matter was just not thought to be of primary importance and the referendum debate degenerated to the level of petty politics and trivia. No one thought the outcome would affect the viability of Australia as a state.
Unless they produce clear outcomes (such as a new constitution) Conventions are not likely to command serious attention from élites or the wider electorate. They must aim to arrive at a decisive and readily understood settlement of important constitutional questions. Ambiguity and obfuscation are the enemies of coherent constitutional debate (unless they are used simply to avoid the catastrophe of outright conflict). There was more than a hint of this failure in the EU’s attempts to secure constitutional reform in the ill-fated Convention on the Future of Europe which fizzled out in 2005. The Kilbrandon Commission’s failure to produce a clear report compromised the attempts of the Labour Government (1974-9) to introduce devolution to Scotland and Wales.
Successful Conventions need to be limited in duration and work to a strict timetable. An open-ended process undercuts any sense of urgency and is unlikely to produce clear outcomes. Successful Conventions are of course part of a process leading to constitutional change. Usually some form of consultation precedes Conventions and legislative scrutiny and/or a referendum follows. However, the Convention is a key event that must produce decisive proposals to enable fundamental constitutional decision making. The Scottish Convention (1989-95) simply lasted too long and at times drifted into the realms of a supporters club for devolution rather than a catalyst for decisive change. Some mitigation may be sought on the grounds that the Scottish Convention was not a state commissioned process, but its ambitions were such to warrant a harsher judgement.
Élite domination is much less acceptable in the Internet age. Furthermore, if élites drive the process for constitutional change it is difficult to distinguish this from the ordinary political process. To be seen as extraordinary political events, Constitutional Conventions must engage wider society and the electorate. This does not remove the need to shape a national conversation and set parameters (without which decision making is very difficult). But a high level of interaction is required if the electorate and civil society are not to be alienated from the process (as happened to a considerable extent in Canada in the 1980s and 1990s). The Constitutional Convention held in Iceland sought to maximise public participation, and it is interesting to note that the Convention underway in Ireland is seeking to emulate this pattern.
The biggest danger caused by élite driven processes is that they tend to produce ‘take it or leave it’ outcomes even when the electorate favours a middle way. We have seen an element of this proclivity in Scotland where élites have often portrayed the constitutional choice as a simple one between independence or the status quo, whereas the electorate appears to favour something along the lines of ‘devo-plus’.
Without an underlying desire among élites to compromise and ‘make-a-deal’ any outcome from a Constitutional Convention is likely to be tarnished. Political actors must be induced to move away from established and polar extremes and onto the middle ground favoured by the electorate. Just as a disengaged electorate might reject an apparently coherent deal made by political élites (Canada again) so can political actors frustrate the popular demand for compromise and deal making. The Northern Ireland peace process faced many points of crisis when political leaders seemed on the edge of returning to entrenched and sectarian positions. The Good Friday breakthrough came when political leaders made their historic and courageous decision to make a deal and justify it to their respective communities. Politicians who in bad faith agree to a Convention process in an attempt to smother a constitutional issue fail the most basic test of statecraft.
Sovereignty of the People
The Canadian writer Peter H. Russell has said that ‘mega-constitutional’ politics only works when the electorate wants to act as a ‘sovereign people’. Not only must they view the state as being under a real threat, but they must want to assert themselves as the ‘sovereign people’ and either renew or dissolve the state. The difficulty in Canada was two-fold. Many did not feel that the state was threatened enough to justify the explicit recognition of Quebec’s national rights. Better to call the bluff of Quebec’s separatists than compromise on a Canadian citizen’s universal rights. Secondly, what became known as ‘the rest of Canada’ started to see itself as the essence of civic Canada against the forces of separatism which commanded considerable support in Quebec. No syntheses emerged from this standoff to forge a new sense of Canadians as a sovereign people.
There is some danger that the UK will experience similar difficulties on this question to those experienced in Canada in the 1980s and 1990s. Will the English electorate respond to the call to act as part of the sovereign people of the UK and accept the principle of greater national autonomy that is surely necessary to retain Scotland in the Union? Or might the English view the UK as greater England with Celtic ornaments?
The House of Commons’ Political and Constitutional Reform Committee tentatively concluded in March that a Convention might be a way of resolving the UK’s long-term constitutional challenges. However, there surely should be nothing tentative about calls for a Constitutional Convention. In promising to convene one if the people of Scotland reject independence, Unionists would be declaring their intention to forge a new and more explicitly multi-national Union. It is time to do so.