David Melding says a Constitutional Convention should follow if there is a No vote in the Scottish referendum
In succeeding against the odds to forge a union, the assembly of American politicians who met at Philadelphia in 1787 received the supreme accolade Founding Fathers. Their Constitutional Convention became the classic example of statecraft and it continues to inspire reformers to this day.
Successor constitutional conventions have been less iconic in our faster and more democratic age. Nonetheless, reflecting on a number of recent Conventions and analogous events we could do worse than settling on a definition that they are constitutional moments outside the ordinary political process. But what are the ingredients that make some Constitutional Conventions work and others fail so disastrously?
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The Reformed Union: Britain as a Federation This is an introduction to the final chapter in the online serialisation we are publishing (here) of a new book by the Deputy Presiding Officer in the National Assembly, David Melding AM. Entitled The Reformed Union: Britain as a Federation, the book has been serialised in six chapters at regular intervals during 2012-13, continuing with Chapter 6 today:
Online serialisation of a book in this way is a first for ClickonWales and demonstrates the new directions that dissemination of serious thinking through the social media is taking. Responses to this sixth and final chapter are welcome and can be posted in the normal way. David Melding now intends to rework the material in light of the comments and criticism he has received. A complete and revised, online version of the The Reformed Union: Britain as a Federation will be launched by the IWA at an event in London in late September, one year ahead of the independence referendum in Scotland. This online publication is a follow-up to David Melding’s earlier work Will Britain Survive Beyond 2020? published by the IWA in 2009, and available here. |
Not all of the following components will be present with full force in any particular Convention, but the absence of more than one of them is likely to compromise the process.
Urgency
The electorate must believe that a constitutional issue of the highest order is at stake and, without its resolution, the very existence of the state might be threatened. A Constitutional Convention – just like a referendum on secession – is not part of the ordinary political process.
The US Constitutional Convention met this criterion because the founding fathers recognised the vulnerability of the republic to external attack. Only a strong, if limited, central government could hope to defend the 13 states from European interference. Iceland’s economic crisis created the existential anxiety needed to question basic constitutional principles, although the recent election of a new government may undo the Convention’s success. Australia’s Constitutional Convention saw its proposals for a republic rejected because the matter was just not thought to be of primary importance and the referendum debate degenerated to the level of petty politics and trivia. No one thought the outcome would affect the viability of Australia as a state.
Clarity
Unless they produce clear outcomes (such as a new constitution) Conventions are not likely to command serious attention from élites or the wider electorate. They must aim to arrive at a decisive and readily understood settlement of important constitutional questions. Ambiguity and obfuscation are the enemies of coherent constitutional debate (unless they are used simply to avoid the catastrophe of outright conflict). There was more than a hint of this failure in the EU’s attempts to secure constitutional reform in the ill-fated Convention on the Future of Europe which fizzled out in 2005. The Kilbrandon Commission’s failure to produce a clear report compromised the attempts of the Labour Government (1974-9) to introduce devolution to Scotland and Wales.
Focus
Successful Conventions need to be limited in duration and work to a strict timetable. An open-ended process undercuts any sense of urgency and is unlikely to produce clear outcomes. Successful Conventions are of course part of a process leading to constitutional change. Usually some form of consultation precedes Conventions and legislative scrutiny and/or a referendum follows. However, the Convention is a key event that must produce decisive proposals to enable fundamental constitutional decision making. The Scottish Convention (1989-95) simply lasted too long and at times drifted into the realms of a supporters club for devolution rather than a catalyst for decisive change. Some mitigation may be sought on the grounds that the Scottish Convention was not a state commissioned process, but its ambitions were such to warrant a harsher judgement.
Participation
Élite domination is much less acceptable in the Internet age. Furthermore, if élites drive the process for constitutional change it is difficult to distinguish this from the ordinary political process. To be seen as extraordinary political events, Constitutional Conventions must engage wider society and the electorate. This does not remove the need to shape a national conversation and set parameters (without which decision making is very difficult). But a high level of interaction is required if the electorate and civil society are not to be alienated from the process (as happened to a considerable extent in Canada in the 1980s and 1990s). The Constitutional Convention held in Iceland sought to maximise public participation, and it is interesting to note that the Convention underway in Ireland is seeking to emulate this pattern.
The biggest danger caused by élite driven processes is that they tend to produce ‘take it or leave it’ outcomes even when the electorate favours a middle way. We have seen an element of this proclivity in Scotland where élites have often portrayed the constitutional choice as a simple one between independence or the status quo, whereas the electorate appears to favour something along the lines of ‘devo-plus’.
Deal-making
Without an underlying desire among élites to compromise and ‘make-a-deal’ any outcome from a Constitutional Convention is likely to be tarnished. Political actors must be induced to move away from established and polar extremes and onto the middle ground favoured by the electorate. Just as a disengaged electorate might reject an apparently coherent deal made by political élites (Canada again) so can political actors frustrate the popular demand for compromise and deal making. The Northern Ireland peace process faced many points of crisis when political leaders seemed on the edge of returning to entrenched and sectarian positions. The Good Friday breakthrough came when political leaders made their historic and courageous decision to make a deal and justify it to their respective communities. Politicians who in bad faith agree to a Convention process in an attempt to smother a constitutional issue fail the most basic test of statecraft.
Sovereignty of the People
The Canadian writer Peter H. Russell has said that ‘mega-constitutional’ politics only works when the electorate wants to act as a ‘sovereign people’. Not only must they view the state as being under a real threat, but they must want to assert themselves as the ‘sovereign people’ and either renew or dissolve the state. The difficulty in Canada was two-fold. Many did not feel that the state was threatened enough to justify the explicit recognition of Quebec’s national rights. Better to call the bluff of Quebec’s separatists than compromise on a Canadian citizen’s universal rights. Secondly, what became known as ‘the rest of Canada’ started to see itself as the essence of civic Canada against the forces of separatism which commanded considerable support in Quebec. No syntheses emerged from this standoff to forge a new sense of Canadians as a sovereign people.
There is some danger that the UK will experience similar difficulties on this question to those experienced in Canada in the 1980s and 1990s. Will the English electorate respond to the call to act as part of the sovereign people of the UK and accept the principle of greater national autonomy that is surely necessary to retain Scotland in the Union? Or might the English view the UK as greater England with Celtic ornaments?
The House of Commons’ Political and Constitutional Reform Committee tentatively concluded in March that a Convention might be a way of resolving the UK’s long-term constitutional challenges. However, there surely should be nothing tentative about calls for a Constitutional Convention. In promising to convene one if the people of Scotland reject independence, Unionists would be declaring their intention to forge a new and more explicitly multi-national Union. It is time to do so.
We cannot have a UK constitution and an EU constitution – it is time to choose!
Sovereignty or slavery – the choice belongs to the people not to the elites. BEFORE we can have a UK constitution we have to solve the problem of whether some or all of the UK wants to be British or ‘European’. Until we have determined this the rest is just a waste of words!
A very interesting piece, and I look forward to reading Chapter 6 of Reformed Union.
I find it alarming that debates such as this are not taking place with more seriousness around the UK more generally. ‘Greater England’ is fast becoming reality, not fiction according to the Future of England Survey and the IPPR.
A new unionism must be forged to incorporate the nationalist forces now prevalent in British society, and, more importantly, be proactive and looking as if it is taking itself seriously. To date, the only group campaigning for continuing union (Better Together) is attempting to achieve the former, but failing in the latter.
New Unionism and the future of the constitution surely must be placed at the forefront of the wider public.
John Walker Can we have a UK constitution and be in the UN? What about Nato? What about the WTO – that stops us doing what we want in trade matters? Our obligations under EU law are the result of treaties signed willingly by British government ministers, who also opted out of things they didn’t like. No-one disputes the UK could leave the EU if it wanted to – no-one would fight a war against secession. So there is no loss of sovereignty at all. None. We opt to be in a club and are bound by its rules. We can leave if we want to. Some people who find that too hard to understand do want to leave. Those of us who can muster a few brain cells don’t.
A very interesting and thought provoking article, as have all David Melding’s articles been. If the union is to be preserved in any form it seems vital that a Constitutional Convention takes place as soon as possible with all countries taking a full and equal role (and not dictated to by the wishes of a few in Westminster).
However I found comments made by David Jones MP today (stressing that the current devolution settlement is enough for Wales) very disturbing. He has made no secret of his distaste for devolution in the past and seems determined to hold up the process. This was also shown in the UK government’s very disappointing contribution to part 2 of the Silk Commission. Our democratically elected Welsh Government should therefore lead the negotiations on any convention on behalf of the people of Wales. It should not be used as a forum for Westminster, Whitehall or Westminster MPs to dictate terms.
As always, a balanced and thoughtful position by David Melding – but one which won’t happen.
If the Scots vote No in the Referendum we will see a turbo-charged British nationalism, or rather, British/Westminster stateism.
The vitriol against the Scot ‘nats’ by the Brit nats (Scottish Labour more any English Tories I guess) will be so strong that they will be against any powers to Scotland. I don’t believe for one minute the warm words about there being a new devolution settlement if the Scots vote ‘no’. There was an option to have ‘Devo Max’ on the ballot paper next year but the three Unionist parties ignored it. That says it all.
The whole Scottish Labour machine will move to block any more powers. Yes, there will be talk of more powers but it will only be talk. There will be some talk of a Constitutional Convention, a sort of a Silk-type Commission … it will be allowed to fuss about for 3 years and then ignored, as we’ve just seen today in Wales with David Melding’s party’s own decision on the Silk Commission.
There could well be a second Referendum on Scottish Independence a few years later, but that would only happen in extraordinary circumstances. However, if there was to be a second referendum I guess the Yes for will get a thumping majority.
Unionists commonly encourage unionist sentiment by suggesting some, modernised, federal arrngement having a better chance of succeeding. But the elephant in the room is the monarchy, who have made it unambiguously clear they will not agree to a federal, non-monarchocentric constitution and the english are far too in awe to confront these people. When Bethan Windsor writes to this site recommending this solutiotn then we can all go forward.
David,
I applaud your methodology of publishing drafts of your work online and seeking feedback before producing a final version. It is enlightened and, I am sure, will result in an improved final product.
I think I made the same comment last time you published, and that is that I think you need to address the question of English establishment and public opinion towards symmetrical constitutional reform, whether in relation to the union, or ‘internal’ to the English settlement. My point is that there is no ‘crisis’, as you correctly identify the concept, in the English system. There is nothing to ‘correct’, as it were, at least in terms of popular opinion. The collective sense of sovereignty, as you call it, is undisturbed in relation to the England-Scotland-Wales-N. Ireland relationship, as that sovereignty is very much vested, psychologically, in English institutions and traditions anyway.
My sense is that ‘average’ English opinion is that Scotland could go its own way, Wales too for that matter, and the world would keep spinning quite happily. This is not surprising. England is a country of 50m people, has one of the richest capital cities in the world and an ‘unbroken’ political tradition of a 1000 years. Why should there be a (popular) crisis? There are, of course, marginal inconveniences to consider if the Celtic fringe went its own way, but they are not existential. In the great scheme of things England doesn’t have that much to lose, and even less to prove.
I am wildly exaggerating and generalising of course, but only to underline a basic truth that I think holds water, and as it happens, is central to your argument and project.
In the absence of any genuine crisis, of existential angst if you like, doesn’t English participation in this convention fail almost all of your tests?
The real existential angst in England (which filters through to Wales and other places by virtue of the London press) is manifestly directed towards Europe (as one of the other contributors above suggested). It is that question which passes all of your tests for a convention in the hearts and minds of the English. That is the great debate they wish to have.
Since the English position fails to meet all of your success criteria for a convention on the ‘internal’ union, isn’t it doomed to failure?
Personally, I do not underestimate the level of ‘crisis’ in the union (the UK one that is), and, whether the Scottish referendum is won or lost this time, the real possibility of it breaking down completely in the next 20 years. Indeed, it is delusional in the extreme to think that there isn’t a crisis whilst one constituent part of that union is 14 or so months away from a referendum on secession. What I do doubt, however, is that that sense of crisis radiates any further afield than unionists in Scotland and Wales, and one or two sentimental unionists in England (for the virtues of the union are surely a matter of opinion and debate in the mind of an English pragmatist?).
The reasons for this English equanimity are, of course, another matter altogether, fascinating may they be.
My feeling is David, that if you don’t address these questions your work (and the project that sits behind it) will be holed before it is launched.
The only way we can “Forge” a new relationship in the UK is to bring it to an end.
We do need a new relationship with England but this can never occur equitably from within the UK. What best suites England, culturally and economically, will always be foisted on us.
The only way is to be independent of England. This does not mean ‘independent’ in a world sense. It means what it says, independent and therefore equal with England. The word ‘equal’ will cause Unionists to choke and gasp for breath, but who cares.
Only as two equal nations can we possibly freely negotiate what is best for the nations of Britain rather than England (or more precisely the City of London) stealing not only the cream but the cake as well.
The first problem to solve is the corrupt nature of politicians, how they twist the truth or tell blatent lies or refuse to give an answer. How could you have a constitutional convention with people like this. Then there is the fundamental problem of political factions or “parties” as they call them, and the party control and bigotry. Then you have the influence of the hidden hands, the Freemasons, Fabian Society and plutocrats. Then there is the nonsense of representative democracy a total legal fiction.
A Scottish parliament or Welsh parliament or English parliament does not truely represent the wishes of the nation. Then there is the problem that England does not even have a national parliament. Great Britain has ended, only a fool could not admit that, so the multi national parliament which once had authority over the three nations, now has no lawful or legitimate authority, so that entity would have to be disregarded. At the mement we are three nations which are being controlled by deception through the European Commission, with the Westminster politicians pretending they are in charge. So how and who is going to set up a constitutional convention?
First a national convention would have to sort out the mess within its own boundries. Relations between the three nations would then have to be proposed and agreed by plebisite. Any agreement could not be the United Kingdom because that has come to an end. Because we always really were seperate and proud nations and Kingdoms an agreement could only be basic in nature, a defence pact and trading pact. With each nation still able to stamp their national character independant of other influence. In my opinion we should forget Great Britain and never be bound by any laws made by it and operate as England, Scotland and Wales, except for when we operate together in defence or trade where we are then known as the Britanic Nations. I think most people are happy to keep a King or Queen as the symbolic head rather than have some scheming politician. Even though the Queen is known as Her Britanic Majesty, the same person is still technically Queen of the English and Queen of the Scots with the heir being Prince of Wales.
In theory Wales could elect their own King and England or Scotland could elect a new King, but it can still work having the same person. Politicians and political parties are the greater problem, in England parties are unknown to the law. They also devide countries and cause by perverted party dogma internal strife. They are a waste of space. All three nations should look to erradicating political parties and think of using technology for direct democracy, with petitions coming from organised groups of the general public or industry, being put to all the people who speak as themselves and not by the legal fiction of representation.
If agreed a petition becomes a statute and can be changed after five years by the same process, there being the common law which is above change by any. This will get rid of most of the corruption and political party conflict which causes all the problems of the world. Other countries could follow our lead and before you know it we could even end up with a corruption free world, with no wars, no “internationalism” where nations get bullied by big business and political ideology. This would be a project purely of honest people for an honest purpose. But it would have to start with ordinary people meeting and saying this is a convention for the future order of our wellbeing, safety and freedom both in our nation and between nations. Of course, the sinister forces in society would not take it lying down. A convention would need armed protection against organised corruption and die hard ideological groups, left wing internationalism could be a dangerous threat.