Constitutional Conventions: Between Citizen Empowerment and Passing the Buck
Silvia Suteu, Lecturer in Public Law, UCL
Recent years have seen experimentation with participatory mechanisms expand to the constitution-making field. Whether macro level exercises, such as referendums on constitutional questions, or micro-deliberations such as citizen assemblies and constitutional conventions, they have been heralded as potential avenues for opening up the process of constitutional reform. Examples include the recent referendums on Scottish independence and the UK’s EU membership; the citizen assemblies set up in British Columbia, The Netherlands and Ontario; and the constitutional conventions in Iceland and Ireland. The appetite for participatory constitutional change does not seem to have abated, with a new Irish constitutional convention set up in late 2016 and a second referendum on Scottish independence having been announced for late 2018-early 2019.
Participation advocates view these experiments as capable of empowering citizens as active members of the political community, trusted with deciding, or making recommendations on, key constitutional reforms. In contrast to the top-down, expert-heavy experiences with constitutional change of the past, these novel participatory forms are meant to inject transparency and citizen expertise into higher-level law-making. They are also expected to result in more democratically legitimate outcomes, given the direct involvement of the constituent people in an act of self-government.
I propose to revisit this initial enthusiasm for participatory constitutional change and to question some of the assumptions of its proponents. I do so by focusing on citizen assembly-style constitutional conventions of the Icelandic and Irish variety. I look at their relationship to the ordinary political process and their place in the wider law-making context. I argue that the time has also come to move from ad hoc experimentation with such novel forms of popular participation to considering their place in the wider regulatory framework. Based on past practice, a more cautious and better informed approach should also be adopted before resorting to such mechanisms.
(1) The place of constitutional conventions in the wider law-making context
(a) One-off events?
Constitutional conventions are often thought of as one-off events and as such to be regulated on an ad hoc basis. For example, a UK-wide constitutional convention was debated in the aftermath of the 2014 Scottish independence referendum as a means of channelling the participatory energy the referendum had unleashed into more holistic constitutional reform. Proponents repeatedly emphasised the extraordinary constitutional moment the country found itself in and the attendant need for heightened democratic legitimacy of any reform. The emphasis was on what the convention could deliver—anything from revision of territorial division of powers to House of Lords reform or reform of the electoral system—rather than how it would fit with the UK’s wider constitution-making processes. This is not surprising given that, until not long ago, participation was distinctly alien to UK constitutional change, which has almost exclusively come about via more traditional parliamentary channels. Even in countries with a lot of experience with direct democracy such as Ireland, the use of citizen assemblies is a recent phenomenon, one which has been regulated on an ad hoc basis rather than by a general rule. As micro-publics begin to be resorted to more often, their regulation and incorporation into the broader constitutional architecture become necessary.
(b) The link to the wider political process
As Iceland in particular has shown, fully excluding politicians from the workings of a convention tasked with constitutional revision may well result in alienating the very people who hold the keys to implementing any resulting change (Landemore 2015). That said, the inclusion of politicians in the first Irish constitutional convention – initially praised as a solution which preserves the integrity of the participatory exercise (Suiter 2015) – has more recently also been critiqued (Carolan 2015). Politicians were entirely excluded from the second Irish citizen assembly, in line with academic proposals which had promoted a purely citizen-based membership on the following grounds:
By selecting ordinary citizens randomly it results in a membership that is not beholden to any electoral or sectoral interests: they have not run for office, they are not selected to represent particular advocacy groups, they are chosen solely on the basis of being Irish citizens willing to give up some time to help advise the politicians on possible solutions.
Critics, however, see the citizen assembly mechanism being used to insulate political parties from responsibility for contested decisions. There is also an argument to be made that these are precisely the type of decisions with which elected representatives are tasked and for which they can be held accountable in a way in which citizen assembly members cannot be.
The link to wider political processes goes beyond the direct involvement of politicians in micro-deliberations. It is often the case that parallel processes of reform are in place, which may result in competing legitimacy claims and a tense relationship with the legislature and/or the executive—see Iceland’s parliament refusing ultimately to adopt the ‘crowdsourced’ constitution and viewing it as no longer a priority. Once a constitutional convention completes its work, the onus for implementing its recommendation falls back on political actors—see the requirement that the Irish Government respond to the recommendations of the first citizen assembly and decide whether to put them to a referendum. Ensuring political buy-in is therefore necessary, as is ex ante clarification of the fate of a convention’s recommendations (Suteu 2015a).
(2) Regulating the recourse to constitutional conventions
(a) Defining issues of fundamental constitutional significance
The recourse to the people in constitution-making more broadly is mainly justified on the grounds of needing to involve the governed in decision-making of the highest constitutional significance. Citizen assemblies add to this the promised benefits of in depth deliberations on certain issues, with assembly members thereby meant to act as proxies for the wider public in making their recommendations.
Examples of convention agendas are useful to consider. Iceland’s convention was tasked with drafting a new constitution, whereas the list of issues to be debated by Ireland’s first constitutional convention included certain electoral reforms, changes to constitutional provisions on the role of women and on blasphemy, and the recognition of same-sex marriage. The terms of reference of Ireland’s second citizen assembly are also a mixed bag: by far the most prominent issue on the agenda for deliberation is the Eighth Amendment to the Constitution (guaranteeing the right to life of the unborn), but other issues include responding to the challenges of an ageing population, fixed term parliaments, the manner in which referendums are held, and considering how Ireland can become a leader in tackling climate change. The two private members’ bills introduced in the previous session of the UK Parliament calling for the establishment of a constitutional convention (see here and here) also chose to list the issues the body would have to consider, which included legislative and fiscal devolution at both the regional and local levels, electoral reform, and the reform of the House of Lords.
Beyond such illustrations, defining what constitutes a fundamental constitutional question ripe for popular participation is difficult. The issues listed above differ in both scope and kind. In the Irish case, they were often cobbled together on the basis of electoral promises and a sense that ‘the time was right’ for certain reforms to be pushed through (e.g. on same-sex marriage). The UK proposals contained several of the most intractable topics of constitutional reform in the country for decades or more. I discuss elsewhere the separate question of the manageability of such an ambitious mandate (Suteu 2015b). The difficulty of providing a principled answer to the logically prior question of what constitutes a fundamental issue to be submitted to a constitutional convention remains (it is indeed an old question, often asked about constitutional referendums as well). The fact of disagreement over their resolution is not a sufficient condition for putting questions to the people in a constitutional convention; nor is retroactive endorsement of the salience of an issue by pointing to high turnouts in ensuing referendums.
(b) Tackling highly divisive moral issues
Scholars have noted the departure from the days of earlier experimentation with mini-publics when the focus was on practical questions (such as local spending or the environment) to more recent deliberation on ‘issues that might, potentially, lead to a transformation of the polity’ (Reuchamps and Suiter 2016: 4). Nevertheless, they argue that ‘there is no reason why some of these constitutional issues—from electoral systems, to marriage equality, to producing new constitutions—should be beyond the competence of ordinary members of the public to decide’ (ibid.).
I will leave aside the argument about citizen competence and draw attention instead to the inclusion in this list of highly contested moral issues and minority rights. The Irish same-sex marriage referendum is often pointed to as an example of popular participation succeeding in this area. That referendum was nevertheless accompanied by a divisive campaign, and the degree to which the wider public was willing to change its mind on the issue was not as great as it had been in the constitutional convention. There is also evidence to suggest it may not have been reasoned argument so much as the personalisation of abstract constitutional issues which ultimately ensured an inclusive constitutional result. All of this before even considering the risks inherent in putting minority rights protection to a popular vote (Marxer 2012).
The inclusion of abortion on the agenda of the second Irish citizen assembly may prove even more problematic. If a precondition of deliberative exercises, including mini-publics, is for participants to be open to changing their minds, it is unclear to what extent they will be likely to do so regarding abortion. It appears that societal attitudes to abortion have swung in the direction of supporting some relaxation of the legal regime in Ireland (see here and here). However, that may have more to do with generational shifts, whereas evidence points to the stability of individual attitudes towards abortion in general (Huckfeldt and Sprague 2000).
Deliberative decision-making strongly favours consensus-building, and that seems also to have informed the choice of a second convention. At the inaugural meeting of the new Irish Citizens’ Assembly, the Taoiseach, Enda Kenny, described the body’s role as follows: ‘We chose to go about our business in this way so that as a nation and a society we could move from a position of contention, even contempt and find valuable consensus.’ He also said the assembly’s work ‘in addressing and achieving this vital consensus on behalf of us all will affect – indeed profoundly affect – how we live our individual lives and our national life in the Republic of Ireland in the years to come.’
However, there is little evidence as yet that citizen assemblies can achieve what years of political debate have not managed to. Not only does it seems unlikely that participants going into the convention with one view would be truly open to switching sides, but it is unclear whether and to what extent assembly members can eventually be perceived as proxies of the wider public. It may also be the case that attitudes on abortion are more resilient than those on same-sex marriage, and individual positions on the issue less open to any compromise.
(c) Codifying the recourse to constitutional conventions
One obvious answer to these problems might be codification. Legislation could be passed to regulate when to resort to a constitutional convention, likely needing to set out some criteria for determining what qualifies as fundamental constitutional changes which would require popular involvement, but also how often such a mechanism could be established. Such legislation could not only distinguish between cases of constitutional reform which could be pursued by ordinary law-making and those when popular involvement is required, but also the type of popular participation mechanism to be resorted to. After all, constitutional conventions are only one such mechanism and many jurisdictions already have experience with others such as referendums or citizen initiatives. They may all pursue increased popular legitimacy in constitution-making, but they are very different instruments, with distinct strengths and weaknesses. Finally, codification could also spell out what happens to the outcome of deliberations in constitutional conventions, such as a governmental duty to respond within a certain fixed timeframe and any requirement to submit recommendations to a popular vote. Legislating on these issues should force more serious thinking about the place of deliberative mini-publics within the larger democratic architecture and about their capacity to enhance the overall deliberative nature of the system (Parkinson and Mansfield 2012).
Conclusion: Constitutional conventions between fostering consensus and passing the buck
If constitutional conventions are here to stay, ad hoc regulation may no longer suffice. Many of the unknowns regarding this mechanism may be solved by serious consideration of their place in the broader constitutional scheme and their relationship to the more traditional avenues for constitutional reform. That said, it may be difficult to prevent citizen assemblies from being used to pass the buck on politically contested issues. In other words, rather than aiming to empower citizens, such conventions could be primarily used as vehicles for deflecting political responsibility for unpopular decisions. The work of the second Irish assembly will provide some insight into whether, even under such circumstances, a constitutional convention can still deliver. I am sceptical as to whether consensus on a highly divisive moral issue such as abortion can ever be ‘outsourced’ to a micro-deliberative body in the way architects of the Irish convention hope; nevertheless, the convention may yet provide impetus for constitutional change in the same way its predecessor did for the recognition of same-sex marriage.
This call for tempering our enthusiasm with regards to participatory mechanisms of constitutional reform should not be overstated. My aim is not to claim that participation has nothing to offer, nor that it is inevitably open to elite manipulation and abuse. On the contrary, I believe there is great scope for participation to produce many of the positive outcomes desired by its proponents, under the right circumstances and with adequate safeguards in place. Nevertheless, I argue for a more sober approach to shaping participatory mechanisms according to both their promise and limitations.
References
Carolan, Eoin. ‘Ireland’s Constitutional Convention: Behind the hype about citizen-led constitutional change’, Int’l J Const Law (2015) 13 (3): 733-748.
Huckfeldt, Robert and John Sprague. ‘Political Consequences of Inconsistency: The Accessibility and Stability of Abortion Attitudes’, Political Psychology (2000) 21 (1): 57-79.
Landemore, Helen. ‘Inclusive Constitution-Making: The Icelandic Experiment’, J Pol Phil (2015) 23 (2): 166-191.
Marxer, Wilfried (ed.) Direct Democracy and Minorities (Springer VS, 2012).
Parkinson, John and Jane Mansbridge, eds., Deliberative Systems: Deliberative Democracy at the Large Scale (Cambridge University Press, 2012).
Suiter, Jane et al. ‘The Irish Constitutional Convention: A Case of “High Legitimacy?” in Min Reuchamps and Jane Suiter (eds.), Constitutional Deliberative Democracy in Europe (ECPR Press 2016): 33-52.
Suiter, Jane and Min Reuchamps, ‘A Constitutional Turn for Deliberative Democracy in Europe?’ in Min Reuchamps and Jane Suiter (eds.), Constitutional Deliberative Democracy in Europe (ECPR Press 2016): 1-13.
Silvia Suteu, ‘Constitutional Conventions in the Digital Era: Lessons from Iceland and Ireland’, B.C. Int’l & Comp L Rev (2015) 38 (2): 251-276.
Suteu, Silvia. ‘Developing Democracy through Citizen Engagement: The Advent of Popular Participation in UK Constitution-Making’, CJICL (2015b) 4 (2): 405-422.