Political and Constitutional Reform CommitteeWritten evidence submitted by Professor James Mitchell

1. Professor James Mitchell is Head of the School of Government and Public Policy, University of Strathclyde. He recently held a British Academy grant researching the work of the Scottish Constitutional Convention and is writing a book on the subject.

Summary

(i) Formal written constitutions differ in length and range of matters covered. Determining what should be included in the remit of any Constitutional Convention will be highly contentious.

(ii) Constitutional deliberation may focus on specific matters though spill over effects mean that deliberation will inevitably result in forcing other matters to the fore.

(iii) Open, participatory deliberation is a worthwhile ideal but much discussion will necessarily take place in closed sessions or through bilateral agreements.

(iv) Legitimacy lies at the heart of the success of any Convention but a representative Convention may achieve high levels of legitimation but create tensions in relations with Parliament at Westminster.

(i) Grounds and Basis for Establishing a Convention

2. The proposal to establish a Constitutional Convention, or some other forum for constitutional deliberation, rests on an assumption that there is a need for reform or at least a review of constitutional arrangements. This in turn rests on an assumption that there is agreement on what is meant by constitutional arrangements. Current advocates of a Constitutional Convention appear to share a view on the need for reform or review without necessarily agreeing on what aspect or aspects of the constitution should be the subject of such deliberation.

3. There are many aspects of the UK’s constitution that are currently the subject of controversy. Recently adopted or revised constitutions in other states have included matters not found in earlier constitutions. It is now more common, for example, for electoral systems to be included in formal written constitutions than in the past. Central banks are also now given protected independence in a significant minority of the world’s written constitutions.

4. In essence, there is a tendency for more recent constitutions, especially those adopted after more open deliberation, to be much lengthier and to include a wider range of matters than older constitutions. There has been a shift from elite-level constitution-making conducted in private (the US Constitutional Convention being the most researched example but also including constitution-making in post-colonial states) to more open process aspiring to greater democratic participation. A primary question either prior to or at the outset of deliberations would have to be: what would be included/excluded in constitutional deliberation by a constitutional convention?

5. Two broad distinctions can be made in response to this question:

(i) Constitutional Convention as a forum for codifying/writing the constitution.

(ii) Constitutional Convention as a forum for addressing specific constitutional issues.

6. The first would be an opportunity to either write a new constitution or to codify and/or amend existing practice. This would involve a radical departure in UK constitutionalism which was characterised as having a “political constitution”,1 a “customary constitution”,2 and an “evolved state”.3 The more traditional approach in the UK to constitutional reform has been evolutionary, piecemeal and lacking in clear codes of practice. This has given rise to charges that incremental change has occurred with unintended consequences or without care to known likely consequences. It has also been suggested that the absence of a “programme” of reform has led to incoherence.

7. A Constitutional Convention that attempted to codify or write a new constitution would be engaged in a formidable task, confronting many highly controversial issues requiring considerable democratic legitimacy, time and resources. It is difficult to detect any demand for such an exercise from the public at large or key institutions such as the political parties. It is difficult to identify the source of any mandate for such an exercise.

8. It is worth noting some of the different mechanisms, often in combination, used to review and reform the constitution:

(a)Parliament: Formal changes in constitutional rules often require primary legislation. The Labour Government’s package of constitutional measures, as listed by some scholars, included a wide range of matters, some requiring legislation, some not.4

(b)Parliamentary committees: Parliamentary committees have considered constitutional matters at various points in time and in different forms including committees consisting of members drawn from both Houses eg the Joint Committee on House of Lords Reform.

(c)Royal Commissions: The Kilbrandon Commission on the Constitution (1969–73) was an example of pre-legislative deliberation. Kilbrandon had a narrower focus than its name suggested. Its origins lay in the Wilson Government’s response to the rise of the SNP. A Cabinet Committee under Richard Crossman had initially proposed establishing a Royal Commission on Scottish Government while Jim Callaghan proposed a Royal Commission to consider the “whole issue of unitary Government and federalism, including the arrangements with Northern Ireland”5 The Royal Commission reported to Parliament.

(d)Ad Hoc Commissions of Enquiry: The McKay Commission on the consequences of devolution for the House of Commons. This Commission consists of experts who will produce a report and to report to the Government (as opposed to Parliament).

(e)Standing Committees/Commission reports: The Electoral Commission was established following the fifth report of the Committee on Standards in Public Life (an independent advisory non-departmental public body).

(f)Extra-parliamentary bodies: Think tanks and others have deliberated on constitutional reform but these have operated as non-authoritative deliberations. The most notable example was the Scottish Constitutional Convention which met after 1989.

Constitutional Convention models

9. There are a number of models of Constitutional Conventions. The US (Philadelphia) Constitutional Convention is perhaps the most famous but its relevance to the UK today may be limited for a number of reasons:

it established a constitution for a new state and hence did not need to tackle issues of codification of existing practice;

the issues to be addressed were more limited in the eighteenth century than today—hence the relatively short document (cf many constitutions written more recently); and

and it was not troubled by the complex issues of democratic legitimacy that would have to be confronted today.

10. The European (Giscard) Convention was established by the European Council in December 2001 completing its deliberations in July 2003. The European Convention’s legitimacy was based on its establishment by the European Council but the Convention’s conclusions required ratification. This proved too difficult. It operated as an elite-level body and ultimately lacked legitimacy.

11. The Scottish Constitutional Convention (SCC) is often referred to in debates in the UK. The SCC was founded on a “Claim of Right” which proved less certain than its founders hoped.6 While participants signed up to the Claim, it was a political rather than justiciable claim to “sovereignty of the Scottish people”. The SCC was an important non-authoritative body for cross- and non-party deliberation on aspects of devolution. There was a conscious effort to ensure that in form and in substantive conclusions it would be an open, participatory form of decision-making. The Convention highlights both the strengths and limitations of open, participatory constitutionalism.

12. The SCC’s deliberations focused mainly on issues of representation in the proposed Scottish parliament. It did not address the UK-dimensions of devolution—intergovernmental relations, the future role of a Scottish [Scotland] Office or implications for the House of Commons of devolution. Participants took the view that these were outside its remit. While it deliberated on the powers, functions and financing of devolution, these debates were much shallower than those on representation. This reflected the principal motivation behind the establishment of the Convention and, indeed, devolution: a perceived lack of Scottish representation in the system of UK government. However, even on matters of representation, the SCC was limited in its scope as a deliberative body. Arguably some of the most important debates on the electoral system were conducted within the parties, rather than the SCC.7 A complaint found in SCC documents was that the two main parties saw the Convention as essentially a bilateral affair.8 The Labour Party’s debate on the electoral system was more significant than any debate within the Convention. Having agreed in principle to support the MMP electoral system, the most contentious issue was the size of the Parliament. This was important as it would determine its degree of proportionality: Labour favoured 112 Members while the Liberal Democrats wanted 145. The decision to opt for 129, splitting the difference, was made in private by the leaders of Labour and Liberal Democrat parties. This highlights a limitation of an open deliberative forum. Some negotiations need to be conducted in private. The open forum may offer an important forum in which issues and proposals are raised but ultimately some of the most contentious matters will be made elsewhere. This is likely to be the case in any constitutional deliberation.

(ii) Remit

13. There may be a temptation to focus on only one aspect of the constitution, such as relations between the component nations. The danger with this is similar to one of the problems that has arisen with regard to devolution. Constitutional change can have unanticipated consequences or anticipated consequences that are simply ignored. The SCC and establishment of devolution may have addressed a problem of legitimacy in Scotland, articulated in terms of a “democratic deficit”, “no Scottish mandate” and “popular sovereignty” amongst the opposition parties in the 1980s and 1990s. However, as a consequence of focusing on devolution to Scotland and Wales and failing to address the wider implications, the problem of legitimacy has simply been displaced rather than resolved. Solving one legitimacy problem in Scotland and Wales has created another: the “West Lothian Question”. This is now the subject of enquiry by the MacKay Commission on the consequences of devolution for the House of Commons. This Commission has a clear focus, tackles a set of issues that are both technical and politically contentious and might have proved difficult to resolve in an open deliberative forum such as a Constitutional Convention. Leaving aside the unfinished business of devolution, debates on the relations between the component parts of the UK state of unions often spill over into debates on other aspects of the constitution.

14. Debates on devolution have two linked dimensions: how devolved government operates and how the devolved government is represented at the centre. In bi-cameral systems, the components of the state find representation in one legislative chamber. It is notable that debates on devolution and Lords reform are rarely linked in the UK. One attraction of a Convention with a wide remit would be to allow for consideration of spill over implications.

(iii) Composition and Legitimacy

15. The key to the composition of any Convention is legitimacy. By legitimacy, we mean not only legality but also perceptions of fairness and consent.9 Parliament at Westminster might legally establish a Convention but unless it is deemed to be constituted fairly and therefore win consent, its deliberations and conclusions will lack legitimacy and likely to be unstable. An elected Convention would have more legitimacy than one that was appointed though a democratic claim to legitimacy might create problems in its relationship with Westminster. This might be exacerbated if the Convention was elected by a more proportional system than simple plurality as it might claim greater popular legitimacy than Parliament. This raises the important mater of the relationship between Parliament and any Convention, however constituted. Parliament is unlikely to cede constitutional authority to any other body.

16. There are winners and losers in any constitutional settlement. This has also has implications for the composition of a Convention. It is always easy to secure the support of winners in any settlement but losers’ consent is important.10 This may require compromises to be reached which may be best achieved outside the formal Convention. Given current constitutional arrangements with devolved governments in three components of the UK, there will be a need to accommodate a territorial dimension in membership. In other words, a Convention that was based solely on population would lose legitimacy in Scotland, Wales and Northern Ireland. On the other hand, a Convention that gave equal representation to the components of the UK state of unions would have little legitimacy in England. Agreeing the composition of the Convention would require compromises of the sort that might be the very subject of its deliberations. Indeed, it might prove as easy to agree on a new constitutional settlement for the UK as on how to constitute any Convention.

October 2012

1 JAG Griffith, “The Political Constitution”, Modern Law Review, vol.42, 1979.

2 Nevil Johnson, Reshaping the British Constitution, Palgrave Macmillan, 2004.

3 Neil MacCormick, Questioning Sovereignty, Oxford University Press, 1999.

4 Vernon Bogdanor, “Our New Constitution”, Law Quarterly Review, vol.120, 2004, lists the following as constitutional changes: the constitutional independence of the Bank of England; Referendums for Scottish and Welsh devolution (under the Referendum (Scotland and Wales) Act, 1997; Scottish Parliament (under Scotland Act, 1998); Welsh assembly (under Government of Wales Act, 1998); Referendum on Belfast Agreement (under Northern Ireland Act, 1998); Northern Ireland Assembly (under Northern Ireland Act, 1998); Referendum on directly elected mayor and strategic authority for London (under the Greater London Authority (Referendum) Act, 1998); Introduction of “proportional representation” for elections to Scottish Parliament; Welsh assembly; Northern Ireland Assembly and London strategic authority (under various aforementioned Acts); “proportional representation” for elections to the European Parliament (under the European Parliamentary Elections Act, 1999); Requirement that local authorities abandon committee system and adopt a cabinet system, city manager or directly elected mayor – last requiring approval in a referendum with provision for 5 per cent of registered electors to require a referendum on elected mayor (under the Local Government Act, 2000); European Convention on Human Rights enacted (under the Human Rights Act 1998); Removal of all but 92 hereditary peers from the House of Lords (under the House of Lords Act, 1999); Freedom of information (under the Freedom of Information Act, 2000); Registration of political parties, the control of political donations and national campaign expenditure and establishment of the Electoral Commission (under the Political Parties, Elections and Referendums Act, 2000); Abolition of office of Lord Chancellor, removal of Law Lords from House of Lords, and establishment of a new Supreme Court.

5 See detailed background of debates within Whitehall in J Mitchell, Devolution in the United Kingdom, 2009, pp.111-114.

6 We, gathered as the Scottish Constitutional Convention, do hereby acknowledge the sovereign right of the Scottish people to determine the form of Government best suited to their needs, and do hereby declare and pledge that in all our actions and deliberations their interests shall be paramount. (Scottish Constitutional Convention 1989: 1)

7 At its 1990 Scottish conference, Labour ruled out FPTP as a method for electing the Scottish Parliament and adopted a set of criteria pointing towards a Mixed Member Proportional system.-

8 An example of this frustration was a letter to non-party members of the Convention in which the secretary to the Convention complained about the “major political parties” holding a press conference “ostensibly speaking on behalf of the Convention, whilst other major interests and organisations in the Convention are not supposed to do so”.

9 David Beetham, The Legitimation of Power, Basingstoke, Palgrave Macmillan, 1991.

10 See J Mitchell, “Devolution’s Unfinished Business”, Political Quarterly, vol. 77, 2006, pp.465-474; James Mitchell, Memorandum submitted to Justice Select Committee of House of Commons, “Legitimacy, Losers’ Consent and Constitutional Policy”, 2008, House of Commons Justice Committee Devolution: a decade on Fifth Report volume II, Ev202-204.

Prepared 2nd April 2013