Consultation on an Interim Constitution for Scotland
Written Submission, Dr Alan Renwick, University of Reading
This response relates to Question 5 of the consultation, on the proposals for the development of a
permanent written constitution by a Constitutional Convention. I am a political scientist with
expertise in processes of constitutional and political reform. My recent pamphlet, After the
Referendum: Options for a Constitutional Convention1 examines in detail the various ways in which a
constitution-making body might be formed in light of wide experience in the UK and around the
world. This submission draws on the analysis in that pamphlet.
Summary
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There are seven basic forms of constitution-making body. The proposals set out by the
Scottish Government has already rightly exclude several of these – such as a royal
commission or a committee of politicians – as not adequately engaging the people of
Scotland. I strongly endorse the Scottish Government’s intention to make the process more
inclusive than this.
Four more inclusive models exist
o a civil society convention, on the model of the Scottish Constitutional Convention of
1989–95;
o a directly elected assembly, on the model of Iceland’s Constitutional Council of
2011;
o a citizens’ assembly, comprising randomly selected citizens, on the model of the
electoral system assemblies in British Columbia, Ontario, and the Netherlands
between 2005 and 2007;
o a mixed assembly, the best model for which is the Irish Constitutional Convention of
2012–14.
The first three of these are far from ideal. In terms of composition, something akin to the
Irish model offers the best way forward for Scotland. This should comprise a majority of
ordinary citizens chosen at random from the electoral register (though with the option to
decline the invitation) and a minority of politicians chosen by parties. Inclusion of
representatives from organized civil society would not be the best option, but could be
defended.
In terms of operation, the model of the three citizens’ assemblies is preferable. That is, the
convention should have time and resources for extended learning, deliberation, and decision
phases, backed up by consultation with experts, activists, and ordinary citizens.
The convention’s recommendations should automatically be put to the people in a
referendum. There should be no opportunity for political intercession at this stage.
What the Design of a Constitutional Convention Needs to Achieve
There are five main criteria for judging the options:
1. Will the process foster a debate that is based on reason rather than interest or passion?
1
Alan Renwick, After the Referendum: Options for a Constitutional Convention (London: Constitution Society,
April 2014).
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2. Will the reasoning be of good quality? Will the participants understand the options and
their strengths and weaknesses?
3. Does the process allow for equitable inclusion of all parts of society?
4. Will the process foster public legitimacy? Will the public have confidence in the process and
the recommendations that it generates?
5. Will the process foster political legitimacy? Will politicians feel an obligation to take the
recommendations forward to fruition?
The first four of these criteria are implicit in the consultation document. The fifth is not, but it is
important: several excellent political reform bodies have produced well reasoned recommendations
that have led nowhere because of lack of political buy-in. The danger of this is lower in Scotland
than in the other cases, but it does exist: I note that the draft bill does not commit to putting the
convention’s proposals to a referendum. This criterion therefore needs to be taken seriously.
How Do the Options Measure Up against These Criteria?
Civil Society Convention:
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This option may seem attractive. There is a precedent for it in Scotland, in the form of the
Scottish Constitutional Convention of 1989–95. It offers a way to include voices beyond the
political elite. The consultation document talks of the inclusion of “civil society groups”.
But it is problematic. How is it decided who will be represented? In what proportions are
they represented? What of those groups – such as the unemployed – that lack a strong
voice in civil society? What of individuals who do not feel the spokespeople of organized
civil society adequately express their perspectives? It is simply not possible to achieve
equitable representation through the mediation of civil society: this option fails on the third
criterion.
For that reason, those who designed the Scottish Constitutional Convention in the 1980s
themselves viewed it as only second best. They preferred a directly elected assembly, but
recognized this was impossible without government support, which would not be
forthcoming while the Conservatives were in power.
Directly Elected Assembly
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A elected assembly is, if an appropriate electoral system is used, in theory representative of
the whole of society. Furthermore, the Icelandic Constitutional Council, which is the only
example of a fully directly elected constitutional assembly in any existing democracy,
worked very well: its members were all independent of political parties; this meant that they
could deliberate without the controlling influence of vested interests in the existing system.
But it would be much harder to make this work in Scotland, whose population is more than
sixteen times larger than Iceland’s. The candidates who can gain sufficient support in a
polity of Scotland’s size are likely to be people who are prominent already – in politics, the
media, and other spheres. Again, therefore, this option would not facilitate the
representation of ordinary Scots.
Furthermore, if, as seems likely, an elected assembly were dominated by political parties,
then the parties’ interests, rather than impartial reasoning, would tend to dominate the
debates and decisions
Conversely, if, as in Iceland, party politicians were expressly excluded, there would be a
danger of weak political legitimacy. In Iceland, despite the quality of the Council’s
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deliberations and despite a positive referendum vote for the implementation of its draft
constitution, politicians who felt excluded from the process have blocked its enactment.
An elected assembly is thus likely to fail on the third criterion and also, depending on its
composition, on either the first or the fifth.
Citizens’ Assembly
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Citizens’ assemblies are composed of ordinary citizens who are randomly selected from the
electoral register. Those invited to participate do have the opportunity to turn the invitation
down, which tends to skew participation towards those who are more interested in politics.
It is possible, however, to stratify the sample, as in an opinion poll, to ensure it is
representative in terms of factors such as age, gender, and income. The citizens’ assemblies
that have taken place have been genuine cross-sections of the whole of society.
Those existing examples also show that, with appropriate support, ordinary citizens working
in citizens’ assemblies can understand apparently abstruse topics and engage in high quality
reasoning. Appropriate support includes the use of trained facilitators to help all members
express their views and the development of a programme of ‘learning’ sessions with experts
and activists.
Citizens’ assemblies thus perform very well on the first three criteria. Evidence from past
cases suggests they also perform well on the fourth: citizens who understand the work of
these assemblies are more likely than others to support their recommendations.
The problem is the fifth criterion: no citizens’ assembly has yet led to actual change. Part of
the problem has been that the assemblies have been called when the political elite was far
from unanimous in its desire for any change at all, which will clearly be less of an issue in
Scotland. But part of the issue has also been that politicians have felt no buy-in to the
process and no need to help the assemblies’ proposals towards enactment. Pure citizens’
assemblies are therefore at risk of failing the fifth criterion.
Mixed Assembly
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There have been examples of various mixed assemblies. The best by far is that of the Irish
Constitutional Convention, which operated between 2012 and early 2014. 66 of the
Convention’s members were ordinary citizens chosen on the citizens’ assembly model; 33
were politicians chosen by the parties; and the government appointed an independent chair.
Concerns were expressed at the Convention’s inception this mixture would not work: that
the politicians would dominate and the ordinary citizens’ voice would not be heard. That is
not what happened. Detailed research by Jane Suiter and colleagues2 shows that members
of all types overwhelmingly felt able to express themselves. The Convention members
deliberated well and produced clear, reasoned conclusions.
While the Convention concluded its work only recently, the evidence so far is that politicians
have taken it much more seriously than in the cases of the pure citizens’ assemblies: the
politician members of the Convention have often acted as ambassadors for the proposals
during Dáil debates; the government has so far promised three referendums stemming from
the Convention’s recommendations, and more may follow.
The evidence we have therefore suggests that a mixed assembly is most likely to satisfy all
five criteria.
2
Jane Suiter, David M. Farrell, Eoin O’Malley, and Clodagh Harris, “It’s good to talk: Citizen-politician
deliberations in Ireland’s Constitutional Convention of 2012-14.” Paper delivered at the General Conference of
the European Consortium for Political Research, University of Glasgow, 3–6 September 2014.
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What Should the Mix in a Mixed Assembly Be?
The Irish model involves a majority of ordinary citizens and a minority of politicians. The Scottish
Government’s consultation document expresses a desire to include representatives of civil society.
So what would the best mix be?
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As noted above, civil society representation cannot meet the criterion of equal
representation of the whole of society. Random selection of ordinary citizens and selection
of politicians, if done appropriately, can meet this criterion. The optimal assembly therefore
does not include civil society organizations.
The case for including civil society organizations would be similar to that for including
politicians: it may be through that their support is needed in order to broaden the legitimacy
of the convention’s proposals. Given the past example of the earlier Scottish Constitutional
Convention, it may be that in Scotland, more than elsewhere, civil society leaders may make
life difficult for constitutional recommendations if they do not feel they have been included
in the process that generated them.
It may therefore be pragmatic to include civil society groups.
Nevertheless, the majority of the convention members should be ordinary citizens.
Otherwise, there is a danger they would feel marginalized.
If, therefore, it is felt necessary to include civil society groups, then the appropriate balance
may be either one sixth each politicians and civil society group representatives and two
thirds ordinary citizens or one fifth each politicians and civil society group representatives
and three fifths ordinary citizens.
Procedural Matters
Beyond these various points relating to composition, I emphasize three procedural points:
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A convention of the kind proposed here needs time. It will need time for a ‘learning phase’,
when it hears a wide range of ideas about the sorts of issues a constitution should
determine and what options are available. It will need time for a detailed ‘deliberation
phase’, when it explores various options in detail and receives feedback on them from a
wide variety of sources. And it will need time for a ‘decision phase’, when it gradually makes
decisions on the many aspects of a constitution. All of this is likely to take at least a year,
with the convention meeting for weekends every two or three weeks.
Such a convention will also need support. Expert advice should be available at all stages.
Politicians, civil society organizations and ordinary citizens should be able to express their
views through written and oral submissions. Members of the convention should take part in
meetings throughout Scotland. Twitter, Facebook, and other media should be used to
gather ideas and encourage debate. Trained facilitators should be available during the
convention’s sessions to help all its members participate fully. As indicated above, similar
models have been used in Ireland and Canada with remarkable success.
A clear procedure should be laid out for what happens after the convention submits its
constitutional recommendations. The Scottish Government should commit to putting these
recommendations to a referendum automatically and to respecting the outcome of that
referendum. A constitution is a document that sets out (among other things) the rules of
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the game that politicians must observe. It is, therefore, not for politicians to intercede in its
content.
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