The government’s constitutional convention: a bold new step for Irish democracy?

Posted by David Farrell, September 9 2012

Here is a copy of my opinion piece in last Saturday’s Irish Times. Given that they tend to put their archives behind a firewall, this link may not work for long. So, here is the original draft in full….

We are seemingly weeks away from the launch of the government’s much anticipated – and for many of us, long overdue – constitutional convention, which is designed to give ordinary citizens a voice in debates over possible reforms to our constitution. To say that this will be something new to Irish politics is an understatement.

Swiss political scientist Jürg Steiner distinguishes between traditional ‘election-centred’ democracies where, other than during elections, citizens are largely excluded from policy decisions and ‘talk-centred’ democracies, in which citizens get to deliberate on policy issues on a regular basis. Steiner’s attention for the most part is on how such approaches can inform policy decisions at the local level – determining the budget of the local council, or perhaps influencing a planning decision.  Ireland is about to join a small band of countries to use this sort of approach to consider bigger national questions over the design of our constitution.

However, even before it is up and running the government’s constitutional convention has been roundly condemned from all quarters, with most criticism devoted to its agenda – as too piecemeal – and its makeup – as ill conceived. Only time will tell if the critics are proven right. But, right or wrong, what cannot be denied is that by its very establishment the constitutional convention is a bold new step by an Irish government. Its like has not been seen before – in this country, on this island, or for that matter on these islands.

Clearly the term ‘constitutional convention’ is not new.  It is common enough practice for governments to establish conventions with a mandate to advise on possible changes to the constitution. Generally its members are parliamentarians from across the political spectrum, learned experts, or some mix of the two. The virtue of this approach is that it seeks to take the question of constitutional design or reform one step away from the government in power. However, a core group that remains excluded is ordinary citizens – literally the ‘constituency’ most directly affected by the outcome.

The Irish government’s model for a constitutional convention differs from the usual approach in three respects: by placing citizens at the heart of the process; by how those citizens are selected; and by how the convention will operate. This form of constitutional convention takes the reform process a further step away from the government in power. To date, only a few other places have gone down this route.

In 1998 the Australian government established a constitutional convention that met over an intensive two-week period to consider the question of whether Australia should become a republic. Its membership comprised a mix of professional politicians and ordinary citizens. Then there were the citizens’ assemblies of British Columbia (2004) and Ontario (2007) that were tasked with reviewing the electoral systems of both Canadian provinces. Only ordinary citizens were involved in these assemblies, meeting at weekends over a number of months (11 months in British Columbia, eight months in Ontario). A broadly similar approach was followed in our third case – the Dutch civic forum that met over a nine-month period in 2006 to discuss electoral reform, again only including ordinary citizens as members.

The country most recently to go down this route was Iceland, which, in the light of the country’s economic meltdown, established a constitutional council last year that was tasked with considering root and branch reform of the constitution. Once again the membership comprised ordinary citizens, and it met full time over a three-month period.

This short list of cases is further whittled down when we consider the other two features built into the design of the Irish government’s constitutional convention. In both the Australian and Icelandic cases the citizen-members were elected (in the latter case, the election was declared null and void on legal grounds; however, the parliament simply proceeded to appoint those candidates who had been successfully elected).  This had the advantage of allowing them to claim a mandate to represent those who voted for them, but in so doing it weakened their claim to be ordinary citizens not representing vested interests.

The distinguishing feature of the Canadian and Dutch cases was that the citizens were selected at random, much like members of a jury.  Therefore, their status as ordinary citizens remained unblemished.  This in turn affected how the assemblies operated. What stands out in the Canadian and Dutch cases was the emphasis on deliberation and dialogue rather than the usual practices of debate and position taking more normally associated with elected assemblies.  The Irish constitutional convention will be based on the Canadian and Dutch approaches of random selection and deliberation.

Of course, as critics of this initiative will be quick to point out, it could be argued that there is not much point devoting precious time and resource to a constitutional convention that has a limited agenda and few teeth. We could debate the merits of this, but rather than rake over that territory again, I will end with an observation from political theorist Robert Goodin who favours ‘input’ approaches to democracy such as this. He readily admits that these conventions can appear ‘toothless’ with the participants given limited power to advise rather than decide. But, for Goodin, the very act of involving ordinary citizens ‘might afford otherwise powerless people some real power over the policy process and the outputs that eventually emerge from it’. They get to speak; those in power get to hear them speak and learn how they frame issues; and the real potential is there to influence outcomes.

This constitutional convention will offer just such a potential. Ultimately, only time will tell if the potential is realized.

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