Ireland’s Constitutional Convention of 2013
In many countries over the years, governments have involved citizens in debates over constitutional reform, whether by giving them a voice in referendums or public initiatives or by allowing them to run for election as members of a convention. Iceland’s Constitutional Council of 2011 is a recent example. The Irish Constitutional Convention, which was established in late 2012 after much anticipation and held its first formal session on the weekend of January 26–27, 2013, also includes citizens as members.1 But it is how these citizens were selected to participate and how the process is being run that is of particular interest. The Convention is one of a small but growing number of cases in which governments have opted to follow deliberative principles, selecting citizens at random rather than by election and managing the discussions along deliberative lines.
Irish policymakers were influenced by the citizens’ assemblies on electoral reform in the Canadian provinces of British Columbia (2004) and Ontario (2007) and the Dutch citizens’ forum (BürgerForum) of 2006.2 In all these cases the citizen members were selected at random rather than running for election and deliberation was the modus operandi.
The origins of the Irish Constitutional Convention
The Irish Constitutional Convention emerged out of a compromise between two parties. In the 2011 election campaign, the Fine Gael and Labour parties included in their election manifestos proposals for establishing citizen-oriented forums to discuss areas for constitutional reform. In Fine Gael’s case the proposal was for a British Columbia–style citizens’ assembly to consider electoral reform (which, given that the electoral system is embedded in the Constitution, amounts to a constitutional reform issue). Labour’s plan was more ambitious: it proposed the establishment of a constitutional convention (made up of equal proportions of politicians, experts and ordinary citizens) to consider a root-and-branch review of the Irish Constitution.
The 2011 general election, which followed the worst economic crisis in the state’s history, produced Ireland’s “electoral earthquake” that saw the electoral wipeout of Ireland’s till then long-dominant Fianna Fáil party.3 Fine Gael and Labour formed a coalition government, with a “Programme for Government” that sought to marry the two parties’ sometimes quite disparate manifesto promises. On the question of the parties’ respective proposals relating to citizens’ assemblies and constitutional conventions, this coalition marriage resulted in the promise to establish a constitutional convention to examine eight specific issues:
- reduction of the presidential term of office to five years;
- reduction of the voting age to 17;
- review of the Dáil (lower house of parliament) electoral system;
- Irish citizens’ right to vote at Irish embassies in presidential elections;
- provisions for same-sex marriage;
- amendment to the clause on the role of women in the home and encouragement of greater participation of women in public life;
- increasing the participation of women in politics; and
- removal of the offence of blasphemy from the Constitution.
This somewhat eclectic mix of items, from the relatively mundane issue of the length of office of the Irish president (whose role is largely ceremonial) to the potentially explosive issue of same-sex marriage, merely reflected the decision of the interparty negotiators to “park” matters that were in their respective election manifestos that were unlikely to be resolved easily during their febrile and intense negotiations. The clauses on blasphemy and women in the home reflected the strong Catholic ethos that underlay Ireland’s Constitutuon of 1937. The negotiators were up against the (largely media-driven) clock to conclude the negotiations and establish a government, so what better way to deal with these matters then wrap them all together and give them to the Constitutional Convention to consider?
It was to take a further 18 months, to the end of 2012, before the Constitutional Convention was finally established, and its work program started in early 2013. It was given a small budget (known to be a fraction of the B.C. and Ontario citizens’ assemblies’ budgets) and a deadline of one year to conclude its work.
Tom Arnold, the former chief executive of the leading Irish international charity, Concern, was named chair of the Convention. The other 99 members are 66 citizens selected at random by a survey company, 29 members of the Irish parliament and four members of the Northern Ireland Assembly. To allow for the possibility of members not being available for all meetings, a list of substitute members was drawn up at the same time.
The Irish case in comparative perspective
Clearly constitutional conventions are not a new phenomenon. The most recent survey of patterns of constitution-making over time, by Fernando Mendez and Jonathan Wheatley, identifies more than 700 cases in which new constitutions were drafted at a national level since 1780, the vast bulk of these in the last 50 years or so.4 But only a portion of these have included the engagement of ordinary citizens.
The past decade has witnessed the emergence of a form of constitutional convention whose setup and mode of operation is not accounted for in Mendez and Wheatley’s study. The use of random selection to pick the citizen members of the Irish Constitutional Convention results in a membership that does not feel a need to represent particular constituencies and is not beholden to any vested interests: these are members who are there simply because they were invited in a random process, not because they sought election. This in turn facilitates a deliberative style of operation.
Apart from the Irish case, the citizens’ assemblies on electoral reform in British Columbia, Ontario and the Netherlands are the only other (known) examples to date.5 These Canadian and Dutch assemblies shared in common that ordinary citizens were the only members, all selected at random. Meetings occurred on weekends over a number of months: 11 months in British Columbia, eight in Ontario and nine in the Netherlands. The two Canadian cases resulted in referendum questions that went directly to the wider citizenry for consideration. In both instances the propositions were defeated, although in British Columbia, which held two successive votes on this, on the first occasion the Yes side actually received majority support but failed to pass a supermajority threshold. The Dutch citizens’ forum recommended only minor changes to the existing electoral system. These were to have been discussed by the government, but the process disintegrated with the collapse of the coalition government.
At the time of writing the Irish Constitutional Convention is most of the way through its program. In common with the other assemblies, its membership includes a random selection of ordinary citizens, with one important difference being that these make up two thirds of the members, with the other third comprising members of parliament. Another notable difference is that the agenda of the Irish constitutional convention is more wide-ranging and the time scale of its activity more constrained. Unlike the other three cases, which each had a long period of time to consider just one item (the electoral system), the Irish Constitutional Convention, also meeting on occasional weekends, has been given one year to consider eight items (the electoral system included).
Criticisms of the Irish Constitutional Convention
It is safe to say that the launch of the Irish Constitutional Convention attracted little by way of positive reaction. On the contrary it was met with a mix of indifference from the mass public, cynicism from those members of the media commentariat who bothered to pay any attention to it, and howls of derision across most social media circles.
From the outset there were three main sets of criticisms, relating to the Convention’s composition, its agenda and its limited advisory role. While it clearly is far too early to pass definitive judgement on the success or otherwise of the Convention, the fact that it has completed most of its work provides an opportunity for a preliminary assessment.
We can start with the criticisms made about the composition of the Convention membership. The main point of contention here is the mixing of ordinary citizens with elected politicians, the argument being that the politicians are likely to dominate the discussions and intimidate the citizen members. On the basis of observations of the meetings (and coverage by journalists), this fear seems unfounded. A point of detail that many of the critics may not have picked up on is the modus operandi that surrounds deliberative processes such as this: members are distributed in tables of seven or eight, each with a trained facilitator whose role is to ensure that all members are given an equal right to participate in discussions in an atmosphere of mutual respect. By its very nature this ensures equal opportunity for all.
It should also be pointed out that the politician members have made every effort not to steal the limelight, particularly in the plenary discussions: in the streamed video feed of these discussions, on regular occasions politician members can be seen encouraging other members of their table to contribute.
A further advantage of having politicians among the ranks of the members is that it could prove useful in helping to minimize the risks of a “disconnect” between the Convention and the political class – a problem that was apparent in the case of the Canadian and Dutch citizens’ assemblies where the political class quite deliberately stayed clear of the work of the assemblies, making it difficult for these assemblies to gain much political purchase.6 Furthermore, what appears to be occurring – at least on the basis of an observation of the first Dáil debate on the Convention, relating to its first report – is that the politician members are acting as cheerleaders for the process.
The second area of criticism is over the agenda of the Constitutional Convention, which is seen as at the same time too limited and overly crowded. The list of eight matters is seen as too restrictive because it does not include fundamental issues of constitutional reform that many called for.7 More to the point, specific matters of constitutional reform that were also on the government political reform agenda, such as children’s rights or abolition of the upper house of parliament, were left off the list. On the other hand, the agenda is seen as overly crowded because the Convention has been given just 12 months to conclude its work, with space and resources for just eight weekends of meetings.
While detailed consideration of these points will have to wait for another day, it is possible to make some preliminary remarks. First, the parliamentary resolution that established the Convention explicitly stated that its work is not confined to the eight themes it has been asked to consider: “Following completion of reports such other relevant constitutional amendments that may be recommended by it.”8 Who can say what other themes the Convention members may wish to deliberate on that might result in additional recommendations for constitutional reform?
Second, it is now apparent that the Convention members are minded to read their brief quite liberally, moving beyond the confines of the specific questions posed in the July resolution. In its first full meeting, in January, the Convention considered two themes: whether to reduce the voting age to 17 and whether to reduce the president’s term of office from seven years to five. Having read the briefing materials, heard from experts and advocacy groups and deliberated over the details of the relevant arguments, the Convention members took decisions that clearly went beyond their brief. Specifically, they voted in favour of:
- reducing the voting age to 16 (the age proposed by many of the advocacy groups promoting a reduced voting age), not 17 (the age they were asked to consider);
- reducing the age of candidacy for presidential candidates; and
- giving citizens a direct role in the process of nominating presidential candidates (they voted against the proposal to reduce the presidential term).
This willingness to extend the agenda of the Convention beyond the specifics of the eight topics given to it to consider continued in subsequent meetings.
The third main area of criticism relates to the fact that the Convention can only make recommendations: its role is advisory rather than declaratory. In contrast to the Canadian citizens’ assemblies, in the Irish case the proposal is that the recommendations of the Convention will be sent back to government to consider rather than going directly to the people as referendum questions. This leaves the final power with government to determine whether or not its recommendations will ever see the light of day in the form of referendum proposals.
A point of detail that the critics appear not to have been taken on board is that the government has given a specific undertaking to respond by way of a formal ministerial statement to parliament within four months of receipt of a report by the Convention. This means that the common practice of simply ignoring unpalatable reports and letting worthy documents gather dust in a damp civil service cellar, is ruled out – the government has said it will respond.
On the basis of its response to the first report – which was debated on schedule in July 2013 – there is some reason for optimism that the government is taking this process seriously. The government has agreed to hold referendums on two of the three recommendations made in this first report and to refer the third recommendation – on giving citizens a say in the nomination of presidential candidates – to the relevant parliamentary committee, on the (quite reasonable) grounds that the details of how this might work needs further consideration.
Government by the people?
Across the world’s established democracies, there has been a trend in recent years toward engaging with citizens and increasing the scope for ordinary citizens to have a say. Initiatives like the B.C. and Ontario citizens’ assemblies and the Irish Constitutional Convention can be seen as part of this “democratic transformation.”9 For Mark Warren, processes such as this form “a potential part of the ecology of democratic institutions.”10 These processes are a complement to other representative institutions. While they are not without their weaknesses, at their heart they represent a serious intent by the political elite to re-engage with society. They are a step toward a form of democracy that seeks to place the citizen centre stage – a democracy, in Robert Goodin’s estimation, centred more on inputs than outputs.11
Obviously, it is too soon to know for sure what the full impact of initiatives such as the Irish Constitutional Convention will be, especially since the Convention’s work is still ongoing. But we can at least speculate, as John Ferejohn does, about how such moves could yet provide “a way to redeem, to some extent, the ancient promise of democracy as a form of popular government – in Lincoln’s words, as government ‘by’ the people.”12
Will such lofty ideals be visited on Irish citizens? The experience to date of the Irish Constitutional Convention bodes well, and many of those who were critical of it at its launch have since revised their views.13 Whether all its recommendations will ever see the light of day in referendums, and whether those that do will actually pass muster with the wider body of citizens, will be a story for another day.