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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

University College London, Faculty of Laws, Bidborough House, 38–50 Bidborough Street, London WC1H 9BT
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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.

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

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1 See Select Committee on the Constitution, 12th Report of Session 2009–10, Referendums in the United Kingdom: Report with Evidence, HL Paper 99.

2 Tierney, S, ‘Reclaiming Politics: Popular Democracy in Britain after the Scottish Referendum’ (2015) 86(2) The Political Quarterly 226.Google Scholar

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4 See (n 2) 232.

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11 House of Commons Political and Constitutional Reform Committee, Do We Need a Constitutional Convention for the UK?, Fourth Report of Session 2012–13 (25 March 2013) 9.

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16 See (n 9) 18.

17 For more on the existence of a global trend towards popular participation beyond mere consultation in constitution-making, see Saunders, C, ‘Constitution Making in the 21st Century’ (2012) 4 International Review of Law 110.Google Scholar

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22 See the Convention’s report, titled Scotland’s Parliament, Scotland’s Right (30 November 1995).

23 One critic, a former member of the Scottish Constitutional Convention, called it an elitist, self-appointed and ultimately unrepresentative body. See C Beaton, ‘Ex-MP: Scotland ‘‘in Trouble’’ If Lax on Constitution’ The Targe (8 December 2013) available at <>.

24 See All Wales Convention Report (November 2009) available at <> 9–10.

25 Ibid 10.

26 Ibid 7.

27 See Conservative Assembly Member Jonathan Morgan cited in ‘More Powers for Wales Says Report’ BBC News (18 November 2009) available at <>. See also Stirbu, DS and McAllister, L, ‘An Exercise in Democratic Deliberation: The All Wales Convention’s Contribution to Constitutional Change’ (2011) 24(1) Contemporary Wales 6485.Google Scholar

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29 Ibid 80.

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33 See The Scottish Government, Scotland’s Future: Your Guide to an Independent Scotland (26 November 2013) 22Google Scholar; and The Scottish Government, The Scottish Independence Bill: A Consultation on an Interim Constitution for Scotland (June 2014) 61.Google Scholar

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37 Clegg, Nick, ‘This Opportunity Cannot Be Hijacked’ Liberal Democrats (22 September 2014).Google Scholar

38 The Green Party, ‘Democracy for Everyone: The UK after the Scottish Referendum’ (September 2014).Google Scholar

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40 See ‘Policy Guide: Where the Parties Stand’ (BBC News, April 2015) available at <>. The All-Party Parliamentary Group for Reform had in fact called on parties to adopt a common platform on this issue, believing that ‘A constitutional convention is an accepted method of securing broad agreement (and is tried and tested, in differing forms, in the Scottish and Welsh contexts as well as internationally).’ See All-Party Parliamentary Group, ‘A Parliament for Reform 2015-2020: Legacy paper of the All-Party Parliamentary Group for Reform, Decentralisation and Devolution in the United Kingdom’ (March 2015).

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 <>>Google Scholar.

42 Government Response to the House of Commons Political and Constitutional Reform Committee Fourth Report of Session 2012-13: Do We Need a Constitutional Convention for the UK? (November 2013) sections 1.3, 2.1, 3.18, 4.1.

43 ‘In Full: David Cameron Statement on the UK’s Future’ BBC News (19 September 2014) available at <>.

44 First Secretary of State and Leader of the House of Commons, Implications of Devolution for England, Policy Paper, December 2014.

45 Ibid 21.

46 Ibid 32.

47 Ibid 27.

48 For opposition criticism, see ‘English Vote Plan to Become Law Despite Objections’ (BBC News, 22 October 2015) available at <>. For an analysis of the constitutional issues raised by this solution, see P Reid, ‘‘‘English Votes on English Law’’: Just Another Running Repair’ UK Constitutional Law Association Blog (28 October 2015) available at <>.

49 See Barnett, A, ‘The Labour Leader Candidates and the Constitution’ OpenDemocracyUK (12 August 2015) available at>. Jeremy Corbyn is also one of the MPs supporting the Constitutional Convention Bill in the House of Commons, on which see below..+Jeremy+Corbyn+is+also+one+of+the+MPs+supporting+the+Constitutional+Convention+Bill+in+the+House+of+Commons,+on+which+see+below.>Google Scholar

50 Stone, J, ‘Lib Dem and Labour Peers Could Work Together to Push for a Constitutional Convention’ Independent (1 June 2015) available at <>..>Google Scholar

51 See (n 11).

52 The report defined it as ‘the issue that the people of England, outside of London, are governed by Westminster, with little authority to propose local solutions that benefit their own communities’. Ibid, section 68.

53 House of Commons Political and Constitutional Reform Committee, A New Magna Carta, Second Report of Session 2014–15 (3 July 2014).Google Scholar

54 House of Commons Political and Constitutional Reform Committee, Consultation on A New Magna Carta?, Seventh Report of Session 2014–15 (3 March 2015) 12.Google Scholar

55 House of Commons Political and Constitutional Reform Committee, The Future of Devolution after the Scottish Referendum, Eleventh Report of Session 2014–15 (23 March 2015) 3.Google Scholar

56 For a list of civil society initiatives predating the Scottish referendum, see (n 53) 376.

57 See Unlock Democracy, ‘Guide to a Constitutional Convention’ (October 2014) and fn 7 at <>; and Electoral Reform Society, ‘Time for a Convention’ at <>;+and+Electoral+Reform+Society,+‘Time+for+a+Convention’+at+>Google Scholar.

58 See the website of the two pilot assemblies, available at <>.

59 The Institute for Welsh Affairs, ‘Constitutional Convention Report’ (April 2015) available at <>..>Google Scholar

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61 See (n 20) 36–7.

62 See Blackburn, R, ‘Enacting a Written Constitution for the United Kingdom’ (2015) 36(1) Statute Law Review 21.Google Scholar

63 See Evans, A, ‘Back to the Future? Warnings from History for a Future UK Constitutional Convention’ (2015) 86(1) The Political Quarterly 2432.Google Scholar

64 See ConstitutionUK, LSE Institute of Public Affairs, available at <>.

65 Constitutional Convention Bill (HL Bill 10) 2015–16, arts 1(1) and 1(3).

66 Constitutional Convention (No. 2) Bill (Bill 61) 2015–16.

67 Cited in (n 49).

68 The Office of Gordon and Brown, Sarah, ‘Gordon Brown Proposes UK People’s Constitutional Convention’ (3 November 2016) available at <>>Google Scholar.

69 See Barker, A, ‘Brown Flags Constitutional Convention’ Financial Times (21 May 2009) available at>..>Google Scholar

70 See (n 68).

71 Carrell, S, ‘Labour Expected to Consider Possibility of Federal UK’ The Guardian (24 February 2017) available at <>..>Google Scholar

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74 See (n 5).

75 Jeffrey, C, ‘Devolution in the United Kingdom: Problems of a Piecemeal Approach to Constitutional Change’ (2009) 39(2) Publius: The Journal of Federalism 289.Google Scholar

76 Leyland, P, ‘Referendums, Popular Sovereignty, and the Territorial Constitution’ in Rawlings, R et al. (eds), Sovereignty and the Law: Domestic, European and International Perspectives (Oxford University Press, Oxford, 2013) 163.Google Scholar

77 Blackburn, R, ‘Constitutional Amendment in the United Kingdom’ in Contiades, X (ed), Engineering Constitutional Change: A Comparative Perspective on Europe, Canada and the USA (Routledge, Abingdon, 2013) 380.Google Scholar

78 Oliver, P and Tomkins, A, ‘Constitutional Change in the United Kingdom’ in Andenas, M (ed), The Creation and Amendment of Constitutional Norms (The British Institute of International and Comparative Law, London, 2000) 357.Google Scholar

79 The Irish convention’s terms of reference stipulated that it could consider and report on ‘such other relevant constitutional amendments that may be recommended by it’, provided it had already considered its initial list of eight. See Constitutional Convention Terms of Reference, Resolution of the Houses of the Oireachtas (July 2012) available at <>. The convention did make use of this provision and added two more items to its list.

80 Lord Gorcott, Constitutional Convention Bill [HL] Committee: 1st sitting (Minutes of Proceedings): House of Lords (11 December 2015).

81 Lord Forsyth of Drumlean, Constitutional Convention Bill [HL] Committee: 1st sitting (Minutes of Proceedings): House of Lords (11 December 2015).

82 Lord Kerr of Kinlochard, Constitutional Convention Bill [HL] Committee: 1st sitting (Minutes of Proceedings): House of Lords (11 December 2015).

83 The Parliamentary Secretary, Cabinet Office (Lord Bridges of Headley), Constitutional Convention Bill [HL] Committee: 1st sitting (Minutes of Proceedings): House of Lords (11 December 2015).

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).

87 Melton, J et al., To Codify or Not to Codify? Lessons from Consolidating the United Kingdom’s Constitutional Statutes The Constitution Unit (March 2015).Google Scholar

88 See (n 62) 20.

89 See (n 33) 271–73 and Scottish Independence Referendum (Franchise) act 2013, art 2.

90 Derrida, J, ‘Declarations’ in Rottenberg, E (ed), Negotiations: Interventions and Interviews 1971–2001 (Stanford University Press, Palo Alto, CA, 2002) 49.Google Scholar

91 Also noting the added difficulties of the UK’s multinational nature for a constitutional convention is (n 63) 29.

92 Lord Forsyth of Drumlean, Constitutional Convention Bill [HL] Committee: 1st sitting (Minutes of Proceedings): House of Lords (11 December 2015).

93 Lord Kerr of Kinlochard, Constitutional Convention Bill [HL] Committee: 1st sitting (Minutes of Proceedings): House of Lords (11 December 2015).

94 See Pogrebinschi, T, ‘The Squared Circle of Participatory Democracy: Scaling up Deliberation to the National Level’ (2013) 7(3) Critical Policy Studies 219–41.Google Scholar

95 Tierney, S, ‘The Referendum in Multi-level States: Fracturing or Fostering Federal Models of Government?’ (13 March 2014) L’Idée fédérale 3.Google Scholar

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97 See Irish Council for Civil Liberties, ‘Developing a Model for Best Practice for Public Participation in Constitutional Reform’ (2012). See also discussion in Carolan (n 96) 740.

98 Warren and Pearse, ‘Introduction: Democratic Renewal and Deliberative Democracy’ (n 10) 10.

99 Renwick (n 60) 11.

100 Jeffrey, C, ‘Constitutional Change–Without End?’ (2015) 86(2) The Political Quarterly 275.Google Scholar

101 Hames, S, ‘No Face Paint Beyond This Point: Pro-Independence Politics after No’ Scottish Constitutional Futures Forum Blog (29 September 2014).Google Scholar

102 Stone, J, ‘Second Scottish Independence Referendum Is Inevitable, Says Nicola Sturgeon’ Independent (12 October 2015) available at <>>Google Scholar.

103 See Scottish Elections (Reduction of Voting Age) Bill (2015) available at <>.

104 The House of Lords had even passed an amendment to the EU Referendum Bill to do precisely that, but the House of Commons rejected the extension of the franchise. See HL Bill 36 2015–16.

105 Shaw, J, ‘The EU Referendum: Who Should Vote?’ British Influence (25 May 2015) available at <>..>Google Scholar

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107 I White, ‘Voting Age’, House of Commons Library Briefing Paper No 1747 (24 November 2015) 15.

108 See (n 14) 1.

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 <>.

114 Ibid.

115 See Blackburn (n 77) 369.

116 Oliver, D, ‘The United Kingdom’ in Oliver, D and Fusaro, C (eds), How Constitutions Change: A Comparative Study (Hart Publishing, London, 2011) 353.Google Scholar

117 On the causes of their failure, see (n 9) 126–44.

118 See (n 101).

119 Ibid.

120 McHarg, A, ‘What Does the Union Need to Do to Survive?’ Scottish Constitutional Futures Forum Blog (25 September 2014).Google Scholar

121 See, respectively, (n 12) 198; and Bergsson, BT and Blokker, P, ‘The Constitutional Experiment in Iceland’ in Bos, E and Pocza, K (eds), Verfassunggebung in konsolidierten Demokratien: Neubeginn oder Verfall eines Systems? (Nomos Verlag, Baden-Baden, 2014) 171.Google Scholar

122 J Suiter et al., ‘It’s Good to Talk: Citizen-politician Deliberations in Ireland’s Constitutional Convention of 2012–14’, Paper presented at ECPR General Conference, Glasgow (3–6 September 2014).

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 <>.

127 McWhinney, E, Constitution-Making: Principles, Process, Practice (University of Toronto Press, Toronto, 1981) 27.Google Scholar

128 ‘Nicola Sturgeon Announces Second Scottish Referendum’ Independent (13 March 2017) available at <>.

129 Tierney, S, ‘A Second Independence Referendum in Scotland: The Legal Issues’, UK Constitutional Law Blog, 13 March 2017, available at <> 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 <>.+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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