Political and Constitutional Reform CommitteeWritten evidence submitted by Katie Ghose, Chief Executive, The Electoral Reform Society

1. The Electoral Reform Society was founded in 1884 and has over 100 years of experience and knowledge of democratic processes and institutions. As an independent campaigning organisation working for a better democracy in the UK we believe voters should be at the heart of British politics. The Society works to improve the health of our democracy and to empower and inform voters. http://www.electoral-reform.org.uk

2. The Electoral Reform Society welcomes the Committee’s inquiry into a constitutional convention for the UK. The Society believes there is a strong case for establishing a vehicle of this type and that now is the right time to be considering it.

3. The UK has undergone a rapid and far-reaching series of constitutional reforms since 1997 but these have been undertaken in isolation lacking any overall holistic view.1 A constitutional convention is one way of examining constitutional issues and other political reforms in the round, rather than on a piecemeal basis.

4. The obvious time to initiate a constitutional convention is after the Scottish independence referendum which must take place by the end of 2014. However there are unresolved political reform issues which would benefit from public deliberation between now and the general election in 2015.

5. We recommend that in addition to any convention that might be triggered by the conclusion of the Scottish referendum, a deliberative process is created from 2013–15 that enables a cross-section of the public to consider a portfolio of specified issues under a theme of “how politics works”. This would provide an opportunity for the process to begin as it means to continue: wide-ranging and bringing the public together with politicians, civil society, academia and other groups with an interest and something to contribute.

6. The Electoral Reform Society believes that a constitutional convention offers a unique opportunity to address a clearly defined portfolio of issues and to bring in a far wider range of people to propose a resolution. The balance of this Parliament affords a period of up to two years for this work to be done—and for it to play a meaningful role in policy development for manifestos and for government formation following the general election

Grounds and Basis for Establishing a Convention

Is there a case for establishing a constitutional convention for the UK?

7. The United Kingdom is a proud, stable democracy. Despite this, there are pressing issues of political reform where direction, much less resolution, seems to elude elected politicians. Whether about the composition of the second chamber or the role of money in financing political parties, it seems that the ability of politicians alone to work together to deliver a settlement is hampered by traditional structures. With the effective shelving of the Government’s political and constitutional reform agenda as outlined in the coalition agreement, the public is left with the perception of unmet challenges at Westminster.

8. The forthcoming referendum on Scottish independence, whatever the outcome, will have significant implications for the rest of the union. Should the referendum, to be held in the autumn 2014 return a “no” vote, there will need to be discussion of a future settlement of powers (a form of “devo-max”). What one part of the Union decides cannot but have implications for the rest of the country. A constitutional convention presents an opportunity to bring that debate to the rest of the UK and identify solutions.

9. The approaching referendum has sparked debate in Scotland on a range of constitutional issues. ERS Scotland is helping to facilitate these wider discussions through its “Democracy Max” inquiry on “what makes a good Scottish democracy”. The programme is aimed at creating a non-partisan space where Scottish citizens can debate and discuss the future they want to see (details on page 6).

10. It is important that discussions about the future of our democracy are not held in isolation. A constitutional convention could bring other voices to the debate, particularly for citizens in England who have not previously had the opportunity to be part of the discussion. As Carwyn Jones, First Minister of Wales puts it, “The English voice has yet properly to be heard”.2

11. Whilst devolution is progressing elsewhere, with the exception of the Greater London Authority, England remains highly centralised. Whilst a “no” vote in the North East Regional Assembly referendum in 2004 and a series of “no” votes for elected city mayors this year suggest there is little appetite for more regional tiers of government, the “English question” concerning the devolution of power from London to the English regions remains in need of an answer.

12. Meanwhile, UK voters remain some of the most unrepresented at local level. The UK is well below all other EU states in term of local representatives per number of voters; has larger geographical and population sized municipalities and has small percentages of the population standing to be local representatives.3 The relationship between local government and Whitehall is also an issue to be considered.

13. A related and pressing concern is the future prospect of any reformed House of Lords. The debate on the proposals put forward earlier this year for an elected House of Lords with proportional regional representation raised a number of constitutional questions relating to the role of the House of Lords in the post Scottish referendum Union. A constitutional convention presents an opportunity to resolve once and for all, within the wider context, some of the recurring questions that are blocking long overdue reform of the Upper Chamber.

14. Recent political reforms have been derailed by political disagreement, lost in political trade offs or have failed to win public support. Examples of these are House of Lords reform, boundary changes, elected mayors and the alternative vote referendum. Of the many reforms included in UK government coalition agreement, only individual electoral registration remains as an initiative on which substantial progress is being made. Cross-party talks on funding of political parties appears likely to stall, with no side feeling a sense of urgency to produce an enduring solution. Further, there is an impression that parties participate in such processes in order to protect their own position and cause damage to the positions of their opponents.

15. This gives the impression that political and constitutional reform has been conducted in the interests of narrow party political gain instead of the interests of citizens. The problems remain but the solutions never materialise.

16. A constitutional convention provides an opportunity for much needed public participation in these debates. As political parties have reached a stalemate, some form of public deliberation may be the way to move forward with these much needed reforms. The involvement and engagement of citizens might be the only way to break the current logjam.

17. We support a constitutional convention to consider specific issues and post Scottish referendum is sensible timing. But there are immediate issues. We do not want to see public voices ignored on a range of political and constitutional matters as politicians consider these issues for their 2015 manifestos. People are rightly asking where next for political reform. There is room for an exercise in public engagement that starts in the next six months, one that has breadth and credibility. Such momentum would mean that any findings could be a foundation for a future constitutional convention. We believe that would be a sensible use of the balance of this Parliament.

18. Crucially a convention also provides important engagement opportunities. Democratic legitimacy is waning with decreasing turnout at elections and declining trust in our representatives. There is a widespread disconnect between people and formal politics. It is important to understand if our institutions and processes are part of the solution or part of the problem. New types and techniques of engagement may provide opportunities for a better democratic process. We should explore ways to bring representative democracy and deliberative and participatory methods closer together for the mutual benefit of both citizens and representatives.

19. Maximising the potential to create a UK-wide debate and at the same time enhancing public engagement and understanding should be at the heart of any proposal for a convention.

If there were to be a constitutional convention, on what basis should it be established? What would be its legal status, or could it proceed on a more informal footing?

20. A purely informal or advisory convention may fail to achieve the necessary public engagement, legitimacy for the exercise or eventual policy impact. For a convention to gain public support and engagement it must be clear about how its conclusions will be taken forward. A process in which the public felt the decisions were a foregone conclusion or that the outcomes could be derailed by party political disagreement would not achieve popular support.

21. There are a number of ways of bringing the political debate and public debate together. Clearly a convention would need cross-party support from the outset to give it a better chance of achieving change. However, the political reality is that the issues under consideration attract a vast difference in opinion and cross-party agreement may be extremely hard to achieve (unlike the Scottish Constitutional Committee where the parties that did sign up to the Convention shared a broad agreement on its destination—see comments on Scottish experience below). This should be taken into consideration in designing the public/party political interaction in any convention process.

22. It is important that a convention maintains the necessary independence to debate the issues openly and that it has the necessary funds to sustain the process. Should a convention be set up without a formal process for engaging a cross-section of society it risks appealing only to those who are already involved and engaged in these debates. This could damage the credibility of the outcomes.

What lessons could be learned from previous constitutional conventions, in other countries?

23. Conventions and assemblies on constitutional issues have been held in a number of countries. The design and composition of these conventions reflect the unique geographical, historical and political make up of each of these areas. Whilst there are lessons to be drawn, the UK will need a convention suited to its own distinct composition and needs.

Experiences from Abroad

British Columbia4

24. One of the more recent and relevant examples of a citizen convention to draw from is the 2004 British Columbia citizens’ assembly on electoral reform.

25. The British Columbia citizens’ assembly was made up of 160 “semi-randomly” selected citizens. First 100 women and 100 men were selected randomly from each of the 79 electoral districts (from the electoral register). From those responding to the initial letter, 10 were invited to attend a local selection meeting in which it was explained what the process involved. From those willing to participate, a random selection of a man and woman for each electoral district was made. This semi-random process (with elements of random and self-selection) enabled the authorities to create a representative sample whilst also ensuring those selected were willing to participate in the substantial workload.

26. In British Columbia it was possible to stratify the sample of the electoral register by age and sex. In the UK, date of birth and gender are not recorded on the register so further sampling would be required for these and other demographic criteria. This would require the initial invite to be sent to a larger number of citizens.

27. The citizens assembly in British Columbia involved a year of work for its members (all meetings took place at weekends). The secretariat was established and selection took place in 2003. Following the selection phase a learning phase ran from January to April 2004 followed by public hearings in May and June. Submissions were invited until September 2004 after which there was a deliberation phase in which the Assembly discussed and debated what its conclusions should be. The final report was presented to the provincial Attorney-General in December 2004.

28. The Assembly had a permanent secretariat of professional staff to administer the process, convene meetings, provide briefings and facilitate the deliberative work.

29. A website was set up giving information on how the Assembly was proceeding and through which the public could make their own submissions.

Iceland5

30. Following the financial crash in 2008 and subsequent “Pots and Pans” revolution, the Icelandic Government established a Constitutional Assembly to write a new constitution (to replace the provisional constitution adopted in 1944).

31. The process advanced in three stages. First Parliament convened a national assembly of 100 people selected randomly from the national register, using stratified sampling to ensure gender, age and regional balance. The national assembly met in October 2010 to discuss the things they would want to see in a new constitution, producing a brief document covering such issues as equal voting rights and public ownership of natural resources.

32. The second step was to appoint a constitutional committee to gather information, provide analysis and propose ideas. The committee was made up of seven professionals from different areas—literature and science as well as law. The committee was required by law to consider the conclusions of the national assembly. They produced a 700 page report containing detail of how the new constitution could be composed including suggested text and analysis of specific issues.

33. The third step was to elect a 25 member Constitutional Council. The members were elected by the Single Transferable Vote from a roster of 523 candidates. The political parties did not field candidates (in part because the two main opposition parties were against the project). The final group was a diverse selection of citizens including a farmer, a priest, a nurse, a philosopher and theatre director as well as lawyers, political scientists and politicians. The Council then set about its task of writing the new constitution. It had just four months. The final bill was agreed by 25 votes to zero.

34. A web-based interface was established for the process with Council meetings broadcast live and all written work posted online for the public to read and comment on. The assembly posted its provisional articles in advance so comments from the public could be factored into the discussions after which revised versions were again posted on the website. The public were encouraged to make submissions. 323 formal proposals were received and discussed and 3,600 comments were posted on the website (Iceland has a population of 320,000 and the world’s largest per capita number of internet users (95%)).

35. The Council was advised by lawyers and others both in meetings and in written submissions. Notably, special interest groups (bankers, politicians, farmers, boat owners) were not given special access over and above that accorded to ordinary citizens.

36. The country specific design of such an assembly is well illustrated here. For Iceland, whose constitution project was born out of the absence of effective checks and balances which had led to undue influence accorded to certain groups, it was essential that these groups should not be given special access to the process. In Ireland, by contrast, the recently established constitutional convention proposals have been criticised for not specifically including civil society organisations and relevant stakeholders.

The UK Experience

37. The Scottish Constitutional Convention, which was formed in the wake of the defeat of devolution in the 1979 referendum, brought together members of Scottish civic society, political parties, local authorities, several church leaders and the Scottish Trades Union Congress. It existed to build support around the concept of a Scottish Parliament, but unlike the examples from British Columbia and Iceland, this was a convention formed at grassroots level, in opposition to government policy and campaigning for a change.

38. The Campaign for a Scottish Assembly at the time published “A Claim of Right for Scotland” in 1988, which articulated the need for a constitutional convention and detailed how it could be organised. It also provided three tasks for the convention: design a scheme for a Scottish Assembly; mobilise Scottish opinion to support it; and lobby the UK Government to deliver it.6

39. The Convention began with a gathering in the Church of Scotland Assembly Hall in March 1989, chaired by Canon Kenyon Wright. The leadership then wrote to over 150 organisations within Scotland to invite views upon the constitutional settlement and thoughts on the design of devolution. The second stage of the Convention’s operation was more inward looking, and saw the membership establish six working groups to consider specific elements of the design for a Scottish Assembly, how it would be elected and how to ensure the equal representation of women in the new institution. A second report, entitled “Towards Scotland’s Parliament” was published in 1990, outlining principles for devolution. However, these principles caused clear partisan tensions at the heart of the Convention, particularly on the proposed proportional electoral system and how to ensure women’s representation in the new institution.

40. To deal with these tensions, a Scottish Constitutional Commission was formed by the Convention’s Executive, independent of the Convention, to resolve some of the issues and make recommendations on details pertaining to the proposed Scottish Parliament. This provided forums for debate, and resulted in the publication of two further documents in 1995: “Key Proposals for Scotland’s Parliament” and “Scotland’s Parliament, Scotland’s Right”, which provided clear information on the Convention’s desired devolution scheme. It was this latter publication that set out the basis for the subsequent structure of the Scottish Parliament. So the work of the Commission can be seen in operation today at Holyrood.

Wales

41. The All Wales Convention,7 chaired by Sir Emyr Jones Parry, was established by the Welsh Assembly Government as a result of the One Wales Agreement which established the Labour-Plaid Cymru Coalition Government after the 2007 Assembly elections.

42. Conducted over a period of 2 years, the Convention was tasked to: “raise awareness and improve understanding of the current arrangements for devolved governance in Wales and of the provisions of Part 4 of the Government of Wales Act 2006, and their future implications for the governance of Wales; facilitate and stimulate a widespread, thorough and participative consultation at all levels of Welsh society on the issue of primary law-making powers; prepare an analysis of the views expressed and the evidence presented through this process; assess the level of public support for giving the National Assembly for Wales primary law-making powers; and report to the One Wales Government on its findings, with recommendations relevant to the holding of a referendum.”

43. The All Wales Convention convened a programme of external evidence-taking sessions, commissioned social research and opinion polls, and undertook visits (eg town hall meetings, street stands etc) in an attempt to engage the public in the devolution debate. Public meetings were held in all Welsh local authorities and evidence was sought in both written format and through oral evidence gathering sessions.

44. The final report of the All Wales Convention was published in 2009, and recommended that a move to Part IV of the Government of Wales Act 2006 offered a “substantial advantage” over the operation of the system of Legislative Competence Orders which had been established with the 2006 Act. It also suggested that a referendum on the issue was “winnable” but that this could not be guaranteed.

ERS Scotland—Democracy Max8

45. ERS Scotland this year launched a programme to involve Scottish citizens in a conversation about what makes good democracy. The programme is helping to bring ordinary citizens into the debate about their future outside of the party political discussions and in doing so giving them a voice in the proceedings.

46. To begin the inquiry, ERS Scotland organised a “People’s Gathering” which brought together over 80 delegates from across Scotland with support from the Institute of Governance at Edinburgh University. Delegates gathered in Edinburgh to engage in some radical thinking about Scotland’s democracy. They were grouped around tables with up to eight delegates per table and two facilitators. In the morning session they discussed their ideas for Scotland’s democratic future and in the afternoon thought about how this might be achieved, or what prevented it from happening.

47. The ideas that came out of the People’s Gathering will now form the basis of a sequence of roundtable discussions, which will then seek to distil these ideas into “a vision of a good Scottish democracy”, a vision that is informed by the people for whom democracy should serve.

48. Academics, experts, commentators and opinion formers, community activists, campaigners, writers and representatives of Scottish civic society (but no politicians) have been invited to a series of six round tables sessions in three phases. There will be two sessions on each of the following themes: “sovereignty of the people”, “defending our democracy” and “how we write the rules”.

49. Each roundtable will report to a public event to which the People’s Gathering delegates will be invited. There will be regular interim papers which detail the progress of the programme and a final publication next year. The findings of the Peoples Gathering and the results of the subsequent discussions will be published on the ERS website as well as being presented to public meetings.

Composition

50. If it is to meet the expectations of a 21st century democratic process, the convention itself should be designed to ensure public ownership of the process and outcomes, equality of representation, openness and transparency.

51. The composition of the constitutional convention must enshrine the principle of popular participation. A convention without widespread public participation could not rightly be called a convention and could damage the legitimacy of the outcomes.

52. Whilst direct citizen involvement is the starting point, there should be defined roles and methods of participation for elected representatives, constitutional experts and civil society organisations either through submissions or direct advisory roles. There are a number of different models to consider. The Irish constitutional convention9 will be two thirds members of the public and one third elected representatives. By contrast the Icelandic process specifically excluded party political representation.

53. It is important that the convention is not dominated by political parties which could make reaching a consensus much harder. Whilst government and party political buy-in is essential, constitutional change has often been a top-down process and it is important now to open this out to wider involvement. The Scottish Constitutional Convention was comprised predominantly of political parties and civil society, and had limited engagement with the wider public. In today’s political climate direct citizen involvement is essential.

54. If public participation is left to the fringes of the debate through self-selecting submissions, surveys and public meetings, those responding are likely to come from a much smaller and less representative cross-section of society.

55. One model that might be considered is a citizens’ assembly comprising 200–220 members chosen by semi-random selection with inbuilt gender parity and age representation. It will be important to ensure the assembly is at least as large as the 160 member British Columbia assembly. Statistically the larger the sample the more likely it is to be representative, a small sample could not achieve demographic representation. In addition the larger the body, the less likely it is to be dominated by dominant personalities.

56. Representation from each of the nations will need to be built into the selection process. Further, consideration needs to be given to the composition of each individual nation’s delegation (particularly given the regional dimension to the issues under consideration). The two member per constituency model used in British Columbia cannot be replicated in the UK due to the number of constituencies. Instead an assembly of between 200–220 could be selected from each of the regions used to elect members of the European Parliament (each region would be allocated three times its number of MEPs (except Northern Ireland)) then divided into smaller groupings with two participants from each. Another model may be to have a series of regional conventions that come together in a “grand convention” so that the convention structure reflects the understanding that over-centralisation is part of the problem.

57. Should a smaller convention be convened and selected by election it will be essential to use a proportional electoral system (such as the Single Transferable Vote used to elect the Icelandic constitution council) to ensure fair representation and diversity.

58. As well as representation on the assembly, providing means for the rest of the public to engage in the process is essential. The examples in British Columbia and Iceland show how new media can be utilised to facilitate wider engagement. Online and social media should be built into the processes enabling a two-way discussion. However, unlike Iceland, the UK does not have exceptionally high rates of internet access—over 7 million people have not accessed the internet in the last year. Therefore other engagement opportunities must also be made available.

Remit and Working Methods

59. For many, the primary purpose of a constitutional convention is to eventually lead to a written constitution for the UK. However, constitutional overhaul most often follows from total economic or social collapse, a situation the UK is not currently experiencing. In the current climate the most pressing concern is the relationship between the component parts of the Union which itself encompasses a number of related constitutional and political reform issues.

60. Whilst the specific terms of reference should be determined by the convention participants, this broad subject area covers issues such as the distribution of power between each devolved government and the UK Parliament, representation at Westminster for citizens under devolved governments (both in the upper and lower house) and regional and local representation.

61. A clear and specific remit is needed to achieve defined outcomes, however, with any deliberative exercise wider issues will be discussed and this could provide valuable insight into public opinion on a wider set of democratic problems.

62. Deliberative exercises usually enable participants to reach a consensus on issues through debate and revision. However, with a large group, complete consensus is not assured. If the convention were to proceed by majority voting, care would need to be taken that representatives from each of the constituent nations had a voice. A majority from each of the regions might be necessary.

63. The convention should report back to Parliament with recommendations. Political convention requires that any major constitutional change be put to a referendum. Should the convention propose substantial constitutional change a confirmatory referendum would be necessary before being enacted into law.

October 2012