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The Scottish independence referendum and the participatory turn in UK constitution-making: The move towards a constitutional convention

Published online by Cambridge University Press:  18 July 2017

SILVIA SUTEU
Affiliation:
University College London, Faculty of Laws, Bidborough House, 38–50 Bidborough Street, London WC1H 9BT
Corresponding
E-mail address:

Abstract:

This article looks at the continued calls for popular participation in UK constitution-making following the 2014 Scottish independence and 2016 Brexit referendums. In particular, it discusses the prospect of a UK constitutional convention being set up to deliberate upon and make recommendations concerning constitutional reform. The article proceeds by first mapping the arguments in favour of setting up such a body in a country with little but growing experience with direct democracy. It then analyses three difficulties surrounding a UK constitutional convention: deciding on a manageable mandate, identifying the political community or communities it is to represent and the method for selecting its membership, and defining the place of such a convention within the UK’s broader constitution-making mechanisms. The article highlights fundamental unknowns in need of clarification before such an instrument could be used while at the same time admitting the limitations of a constitutional convention as a panacea for all of the UK’s constitutional woes. In exploring these questions, the article shows how constitutional reform debates in the UK are no less complex than were those surrounding Scottish independence and have been further compounded by Brexit.

Type
Special Issue: Independence in a World of Intersecting Legal and Political Regimes
Copyright
Copyright © Cambridge University Press 2017 

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References

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41 There were some exceptions, however. See Goodman, P, ‘A New Model for the Constitution. A New Model for Conservative Leadership’ (Conservative Home, 19 September 2014) available at <http://www.conservativehome.com/thetorydiary/2014/09/a-new-model-for-the-constitution-a-new-model-for-conservative-leadership-2.html>>Google Scholar.

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67 Cited in (n 49).

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84 See Table in Hazell (n 60).

85 Constitutional Convention Bill [HL], Amendment to be moved in Committee, HL Bill 10(a).

86 See (n 62) and (n 53).

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109 Ibid 3.

110 For more on the similarities and differences between exercises in micro-deliberation and referendums, see S Suteu and S Tierney, ‘Participation Is Not Deliberation: Disentangling Principles of Constitution-making Good Practice’ in Levy, R et al. (eds), Deliberative Constitutionalism (Cambridge University Press, Cambridge, forthcoming).Google Scholar

111 The Parliament failed to discuss the bill a third and necessary time in 2013 and the new constitution dropped from amidst priorities in the general election that same year. A new procedure to amend the existing constitution by 2017 was instead proposed.

112 The two referendums were held in May 2015 and dealt with reducing the age for candidacy for president and with the legalisation of same-sex marriage. See also (n 96) 745, explaining it would be unfair to describe this as a failure of the constitutional convention itself, given that the Irish Government had maintained a veto on submitting its recommendations to a popular vote ever since agreeing to establish the convention.

113 D Farrell, ‘Final Report Card on the Government’s Reactions to the Irish Constitutional Convention’ (23 January 2016) available at <http://politicalreform.ie/2016/01/23/final-report-card-on-the-governments-reactions-to-the-irish-constitutional-convention/>.

114 Ibid.

115 See Blackburn (n 77) 369.

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118 See (n 101).

119 Ibid.

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123 See Table in Hazell (n 60).

124 See (n 3) 295.

125 Renwick (n 60) 11.

126 The latter has been an accusation levied against the Irish constitutional convention, see E Carolan, ‘Some Lessons from Ireland’s Marriage Referendum?’ UK Constitutional Law Association Blog (8 December 2015) available at <http://ukconstitutionallaw.org/2015/12/08/eoin-carolan-some-lessons-from-irelands-marriage-referendum/>.

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129 Tierney, S, ‘A Second Independence Referendum in Scotland: The Legal Issues’, UK Constitutional Law Blog, 13 March 2017, available at <https://ukconstitutionallaw.org/2017/03/13/stephen-tierney-a-second-independence-referendum-in-scotland-the-legal-issues/> and E Smith and A Young, ‘‘That’s How It Worked in 2014, and How It Would Have to Work Again’’, UK Constitutional Law Blog, 15 March 2017, available at <https://ukconstitutionallaw.org/2017/03/15/ewan-smith-and-alison-young-thats-how-it-worked-in-2014-and-how-it-would-have-to-work-again/>.+and+E+Smith+and+A+Young,+‘‘That’s+How+It+Worked+in+2014,+and+How+It+Would+Have+to+Work+Again’’,+UK+Constitutional+Law+Blog,+15+March+2017,+available+at+.>Google Scholar

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