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Mike Gordon: Do We Need a Constitutional Convention for the UK?

What happens if Scotland votes ‘no’ in September 2014?  Would a re-examination of the constitutional structure of the UK be an important part of the reaction to the result of the independence referendum?  And how would the future direction of any reform of the UK constitution be established?  In thinking about such questions, the matter of how constitutional reform is undertaken in the UK (and indeed, to the UK) would fall to be considered.  One mechanism for the evaluation of constitutional change which could feature prominently in such discussions is the constitutional convention.  This blog post will review the report of the House of Commons Political and Constitutional Reform Committee (PCRC) into this very issue, and reflect on how we should answer the question posed by the PCRC: Do we need a constitutional convention for the UK?

The PCRC’s report (Fourth Report of Session 2012-13, HC 371), published in March 2013, considered two key questions: (i) is a constitutional convention necessary for the UK; and (ii) if so, what would be the remit and composition of a UK wide constitutional convention?  To some extent, of course, these questions collapse into one another – the remit of a constitutional convention would need to be such that it could consider the ‘necessary’ issues, and its composition would need to be appropriate to enable the ‘necessary’ questions to be answered – yet the distinction is worth noting because the PCRC’s report gives clearer answers to the first than the second.   Perhaps this is inevitable, for the detail as to what form a convention would take would be difficult to determine definitively in the abstract, prior to the generation of sufficient political impetus for such a mechanism to be established.  And while the PCRC worked from a clear idea of what a convention is, defining it as a ‘representative body collected together to discuss constitutional change’ (para. 15), as distinct from a commission manned (for that is what they would typically be) by the great and the good, there is inherently much scope for variation in translating this formula into practice. 

But why a constitutional convention for the UK now?  As to ‘why now’, the PCRC’s report noted the pace and scale of constitutional change carried out in the UK in the post-1997 era of reform, a key part of which has been devolution to Scotland, Wales and Northern Ireland, along with the enactment of the Human Rights Act 1998, (partial) reform of the House of Lords, creation of the Supreme Court, and freedom of information legislation.  And while initiated by the New Labour governments of Tony Blair, and flirted with (ultimately to little end) in Gordon Brown’s The Governance of Britain (Cm 7170, July 2007), this era of reform has extended into the present period of coalition. 

Perhaps surprisingly, constitutional reform has comprised a significant part of the Conservative and Liberal Democrat legislative agenda, with further devolution to Scotland, Wales and Northern Ireland, the introduction of fixed-term parliaments, requiring referendums to approve changes to the UK-EU relationship, and alteration of the future rules on succession to the Crown.  In addition, there were the referendum at which changes to the voting system for elections to the House of Commons were rejected, and a failed attempt to complete reform of the House of Lords.  In the light of such an array of change occurring in under two decades – a relatively short period of time in constitutional terms – the PCRC identified a potential need to step back and both review the impact of this reform, while also reflecting on the future direction of the UK constitution. 

As to ‘why a convention’, the PCRC’s report highlights a number of potential benefits.  A convention could make possible a more strategic approach to constitutional reform than has previously been experienced, with even the more pro-active era discussed above still in general consisting of batches of isolated measures introduced unsystematically.  Convening a convention might also allow constitutional change to be deliberated upon in advance of any particular crisis, limiting the scope for expediency to trump broader reflection, and enabling political principle to be given due consideration alongside, rather than subordinated to, matters of political pragmatism (two key principles were identified by the PCRC – devolution and union – which may be controversial for some).  And, of course, the democratic desirability of engaging citizens with the work of a convention – whether internally, as participants, or externally, as contributors – is central to any case that might be made as to the appropriateness of this mechanism for reform. 

We must note, however, that the PCRC was not unanimous as to either the need for a convention now, or that this would be an appropriate instrument for the assessment of constitutional change.  And it is not difficult to see why enthusiasm for a constitutional convention might need to be qualified, at the very least.  There may be concerns about cost (especially in a period of ‘austerity’), commitment (of the general public to elaborate reform mechanisms), control (of the process by the Westminster government), competence (of any citizens involved), and credibility (of the recommendations reached).  Yet while such concerns would certainly need to be addressed, they might also be thought to be challenges to any form of democratic process, which are merely manifested differently in relation to a convention, rather than being novel, additional difficulties.   

A general case for a UK constitutional convention can thus be seen to emerge from the report of the PCRC, despite the (understandably) qualified nature of the recommendations.  There is, however, a complication, arguably an unnecessary one, which stems from what the PCRC described as ‘the elephant in the room’.  This is the lack of devolution to England (outside of London), identified as a significant defect in the existing asymmetrical system by the PCRC, which concluded that the ‘English question’ would need to be solved prior to establishing a UK wide convention.  This could be done, the PCRC suggested, either by establishing an English ‘pre-convention’ – a forum in which the people of England could discuss if, and how, English devolution might be pursued – or by the government by some alternative means.

 While it is understandable that the PCRC identified this issue as one requiring attention, and that as a matter of principle it should be one ‘for the people of England alone’ (para. 68) to grapple with, making resolution of the English question a prerequisite to a UK convention could seriously undermine the prospect of the latter ever occurring.  One key issue is the sheer difficulty in resolving the English question in itself – regional assemblies seem to have been rejected after the 2004 referendum in the North East, local authorities may lack capacity and clout, and an English Parliament would threaten to dominate the union.  The compromise solutions of the kind recently proposed by the McKay Commission, which suggested the creation of a range of procedures within the UK Parliament to privilege the views of English MPs on ‘English’ draft legislative clauses, are complex and unsatisfactory.  And while the PCRC favoured giving English local authorities the ability to choose (or not choose) further powers from a ‘menu of options’, this may appear a rather poor relation to the existing devolution settlements (if indeed it bears comparison to them at all).  With such a range of disputed options available, resolution of the English question appears far from imminent (and even this may be an understatement), which would present an obstacle to a UK wide convention being established.

 But another problem, perhaps more important, is that a UK wide convention could provide exactly the kind of environment in which such difficult constitutional questions could be considered, usefully informed by Scottish, Welsh, and Northern Irish experiences of devolution.  To advocate the creation of a convention in which broad reflection on fundamental constitutional questions could occur, and then remove from the ambit of this process one of the most challenging of such questions, seems very peculiar. 

This flaw aside, there is value in the PCRC’s report.  As the convention is a device which has been increasingly employed for the consideration of constitutional reform in countries around the world, the report draws on the growing body of evidence from Scotland, Canada, and Iceland to establish a number of principles which, while abstract, would be capable of structuring future discussion about the remit and composition of a UK convention.  Among the factors rightly emphasised in the report are the importance of a convention being representative of all parts of the union, the desirability of strong public participation, and a need for clarity both as to the initial remit and process to be followed upon the delivery of any recommendations. 

Of course, this means practically all detail would still need to be determined, for example: should citizen members be elected (as in Iceland) or randomly selected (as in the Canadian Citizens’ Assemblies)?  Does the PCRC’s recommendation that the ‘Governments and Legislatures of all the nations of the Union would be key participants in the convention and the public debate’ (para. 106) mean that political actors should be permitted to serve as convention members, or that they should simply be able to make representations to this body?  Does the need for a clear remit mean that it cannot also be an ‘open’ one?  But the body of evidence that can inform the making of such decisions is increasing, with the Convention on the Constitution of Ireland having completed its work in the last few days, having been tasked with considering a range of issues from electoral reform, to reducing the Presidential term of office, to increasing the participation of women in politics, to removing the offence of blasphemy from the constitution. 

Nevertheless, the UK government did not accept the PCRC’s call for it to begin exploratory work into the prospect of a UK wide constitutional convention being held (for reasons which included that it is too focused upon tackling the economic crisis to do much else; an argument which had already been robustly rejected by the PCRC), although it did not reject outright the argument that a constitutional convention may in future be a useful mechanism.  The prospects of a UK wide constitutional convention being established may therefore, at present, seem slim.  Yet, if a ‘constitutional moment’ is required for significant constitutional events to occur, as Dawn Oliver among others has argued, it is possible that one could be presented in the aftermath of the independence referendum.  Or, more accurately, that a constitutional moment could be manufactured or constructed after the independence referendum, for such ‘moments’ surely do not simply lie awaiting discovery, fully formed.  The recent interventions of Ming Campbell – calling for a convention to be established within 30 days of a No vote ‘to secure a consensus for the further extension of powers to the Scottish Parliament’ – and Gordon Brown – proposing a formalised power-sharing constitutional partnership for the UK – indicate clearly that such a constitutional moment could be manufactured. 

The crucial issue, then, (and this is perhaps a constant with constitutional reform, by any process) will be whether there is sufficient political impetus for a UK constitutional convention to be held at some stage after September 2014 – if, that is, Scotland votes to remain part of the UK.  If Scotland votes for independence, a convention may still be required in what remains of the UK, for the same reasons discussed above, and the Scottish government has indicated that a separate convention will play an important role in establishing an independent Scotland’s constitutional future.  Whatever occurs after the referendum, what is perhaps ultimately most important about the PCRC’s report is that it has been written at all.  For while it can be criticised in some regards, the report opens up discussion about the prospect of a constitutional convention for the UK, providing a starting point for future deliberation if the opportunity, and political will, arises.

Dr Mike Gordon is a lecturer in law at the University of Liverpool.  This post is based on a paper delivered at the workshop After the Referendum: Constitutional Change in the Event of a No Vote held at the University of Glasgow on 28th January 2014.


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