A Welsh Constitution III (a): How should a Welsh Constitution be drafted?

(Title Image: Irish Citizens Assembly)

The next two posts – today and tomorrow – focus on the process of drafting a constitution. Where do we start?

Different nations have used different methods to draft their constitutions and I’ll go through some of the options in a little more detail shortly. That said, a Constitution could well be drafted sooner than expected, with at least three active initiatives.

Towards the end of 2019, Plaid Cymru launched an Independence Commission chaired by former AM and Housing Minister, Jocelyn Davies, which will attempt to address some of the issues surrounding independence – including the Constitution. It’s is/was hoped will be developed in tandem with a Citizens’ Assembly. A report is due to be published by the end of 2020, but there’s been very little said about it since it was announced.

A second process has been started by former MP, Gwynoro Jones, called the National Conversation/Sgwrs Cenedl – though instead of being focused on an independent Welsh Constitution, it’s considering possible alternative constitutional models for the UK as well (federalism, confederalism etc.).

A Written Constitution for Wales site includes a first draft written constitution (based partly on Finland’s) and the author is asking for comments and suggestions as part of an effort to crowdsource a constitution. Lyn Thomas has also published a detailed draft of a possible constitution at his site.

Additionally, David Melding AM (Con, South Wales Central) has been an active proponent for a federal UK Constitution via a new Act of Union. Though it’s obvious that this series of posts is only concentrating on independence, his thoughts on the matter are well worth reading.

How did other nations draft their constitutions?

United Kingdom (No fixed date) – As touched on in Part II, there’s no single UK Constitution as such and the UK’s uncodified constitution consists of laws made by Parliament, with executive authority derived from the Crown and executed by a government with popular support. So the UK’s Constitution has been effectively written and re-written over hundreds of years by monarchs and MPs.

Irish Free State/Republic of Ireland (1937) – The Irish Constitution was drafted in private by a small group, personally overseen by Eamon de Valera. The draft was then put to a resolution in the Dáil where some minor amendments were made before being approved. Finally, the Constitution was then put to the electorate in a referendum where it was approved by 56.5%.

Australia (1901) – Australia originally consisted of several self-governing colonies of the British Empire, but there were long moves to create a single federal Australian state. The formal federalisation process started following a conference in 1890. Several constitutional conventions were held intermittently over several years until a final draft Constitution was approved. Each colony had to ratify the Constitution via referendums held between 1898-1900. Once every colony agreed to it, the (federal) Commonwealth of Australia was established. New Zealand and the British Empire’s Pacific Islands were initially part of the plans but never took part.

United States (1787) – A Constitutional Convention, to which only around 55 of the appointed 74 delegates attended, drafted a replacement for the Articles of Confederation (the USA’s original constitution) between May-September 1787. Several sub-committees were set up to consider specific matters in more detail, with different proposals put forward – some of which were radically different from the US Constitution as it is today. The US Constitution was ratified by individual states and all subsequent amendments to the US Constitution have required ratification by the state legislatures.

Germany (1949) – A Constituent Assembly (Parlamentarischer Rat) made up of 65 appointed representatives of the (West) German federal states (Länder) prepared an initial draft in August 1948. A final version of German Basic Law was prepared between September 1948 and May 1949 and was officially ratified on 23rd May 1949. German Basic Law was carried over and applied to East German Länder after reunification in 1991.

Norway (1814) – A Constituent Assembly made up of delegates from around the country met with a rotating chairmanship. The process of writing a constitution – dissolving a union with Denmark – took about a month. Following a brief war with Sweden, Norway entered into a loose union with the Swedes which was itself dissolved in 1905, restoring Norwegian independence and the Norwegian Constitution.

Iceland (2010, unadopted) – Following the crippling of the Icelandic economy as a result of the 2007-08 Great Recession, a peaceful “Kitchenware Revolution” took place in Reykjavik during 2009, forcing an early election with calls for widespread constitutional reform. The Icelandic Government passed a law establishing a Constitutional Assembly and its 25 members were elected – though the Icelandic courts threw out the result due to irregularities, so the Althing voted to appoint members themselves. The Constitutional Assembly prepared a draft by summer 2011 and a six-question referendum was held in 2012 in which all six of the Assembly’s proposals were agreed. However, as the 2013 Icelandic General Election was won by parties opposed to the new constitution, a Bill ratifying it has never been passed.

How could Wales draft a constitution?

Advantages

Expertise – Under a closed convention, the Senedd could ensure that only people with the right level of expertise draft the constitution, meaning it would likely be led by academics with in-depth knowledge of how constitutions work, as well as political appointments to ensure cross-party buy-in. Some lay members could be added to ensure a fair cross-section of Welsh society but that’s not guaranteed.

It’s likely to be the fastest way to do it – If time were an issue for whatever reason, then having a self-selecting group of people well-versed in how to draft a constitution would likely make the process far speedier and cost-effective than opening it out to more people. Get the right people involved with a clear schedule and a Welsh Constitution could be drafted in weeks rather than months or years.

Some measure of control over the process – A closed convention would keep things in check; you won’t end up with a completely unworkable list of fantasy clauses and, you would assume, the Senedd would keep an eye on things to ensure the public’s views are taken into account and that the process is properly scrutinised.

Disadvantages

Elitism – It goes without saying. While this may well have been a perfectly valid way to draft a constitution in the 19th Century, these days a closed convention would be written off as an establishment/crachach stitch-up. Those of you who follow Welsh politics closely would probably be able to name the people and organisations that would likely be invited to take part without thinking too much about it.

Party politics – Any political party involvement will bring with it all the baggage associated with party politics. You’ll end up with leaks, anonymous briefings, fallings-out over what is or isn’t included and parties trying to shoe-horn in what they want whilst neglecting what the people of Wales as a whole might want.

Imposing a constitution on Wales – Getting a lot of “great minds” in a room and having them fart out a constitution, gifting their wisdom from on high on an etched stone tablet….it’s not the best beginning for a new nation state, is it? If we want to commit to democracy, political engagement and equality then there has to be some sort of public involvement from the start.

Advantages

Full and comprehensive public engagement – This is the most open and transparent way to draft a constitution and would address concerns about the process being elitist and closed-off. If a closed convention of men of standing was the way to do it in the 19th and 20th centuries, then this would be a 21st century way of doing things. If it’s properly managed and moderated (there would have to be someone or some organisation to act as “editor”) then it could prove popular.

Amplifying neglected voices – This is the easiest way for people from marginalised groups to have their say (short of being properly represented in other methods of constitutional drafting). There wouldn’t be any tokenism and everyone would be able to contribute on an equal basis.

Genuinely “by the people, for the people” – The process and the resulting constitution would belong to everyone and would perhaps be a more genuine reflection of the Welsh public’s wants and desires for a new state.

Disadvantages

3million people, 30million different opinions – This would be a noisy, probably incredibly frustrating and depressing experience for anyone trying to moderate it. While you would hope most people would take it seriously and act with both feet planted firmly on Earth, you’ll end up with arguments ranging from the complete abolition of private property to the legalisation of slavery.

Appeal to loudness – At present, we live in an age where shouting louder makes you right. Some people would likely become more engaged with the process than others and, if emboldened, might become a clique that shouts other people down instead of listening or accepting other relevant points of view. That said, if you place limits on how people can take part then it undermines the whole point of doing it this way.

Would the public be interested enough to take part in the first place? – Wales is a post-political country/post-democracy and I’m not entirely sure drafting a constitution would be exciting or engaging enough for people to take part other than those who are politically-engaged anyway. So despite being open, it would become a self-selecting convention.

Advantages

Balances expertise with a democratic mandate – In Iceland, it took the Constitutional Assembly (of just 25 members) around four months to draft a new constitution, which is fairly quick. All of the members who stood for election brought with them a wide range of experience from different parts of society.

An opportunity to properly reflect Welsh society – There would be an opportunity to ensure that the Constitutional Assembly properly reflected Welsh society as a whole (gender balance, 20% Welsh-speakers, representatives of minority and under-represented groups) by a proportion of its members being appointed rather than directly-elected (a bit like the Welsh Youth Parliament).

Transparency and accountability – You would assume a Constitutional Assembly would hold meetings in public, would at the very least run a few public consultations to gather the public’s views and would have rules and procedures similar to the Senedd. It would likely make for a better atmosphere to discuss difficult subjects in open without being a free-for-all.

Disadvantages

What if people don’t vote? – If turnout in any Constitutional Assembly election were low – as it’s likely to be because people might not know what they’re voting for if it’s not properly explained to them – then there would be question marks from day one about its legitimacy. We would, in the most literal terms, be electing a talking shop/task and finish group and it could be hard to capture the public’s imagination.

Party politics – As mentioned earlier, there’s a risk that by making the constitution a political process rather than one based solely on the national interest, one party or group of people with a fixed ideology could force through their vision without regard for what might work, while others might see their exclusion as being a stitch-up.

Being over-ruled – If the Senedd was in charge of drafting terms of reference and terms of office, then they may naturally want to keep some element of control over proceedings – including a possible veto on some aspects of a constitution drafted by a Constitutional Assembly. Iceland’s new constitution has never been ratified, as mentioned earlier.

Advantages

An opportunity to properly reflect Welsh society – Like a Constitutional Assembly, there would be an opportunity to ensure Welsh society as a whole was properly reflected, but without the hassle of holding an election.

It would force those drafting the constitution to consider accessibility (Part IIIb) – If you put a cross-section of Welsh society in a room, some would understand constitutional and political terms, while many others wouldn’t. Everything would need to be explained in a way for the maximum number of people to understand, which could make the process more inclusive and result in a constitution that everyone can follow without needing legal or political expertise.

Excludes politics and politicians – While excluding politics and political parties may have some disadvantages (namely losing some expertise), a Citizens’ Assembly would enable those taking part to propose things which a self-interested politician or member of a political party would want to avoid (i.e. banning double-jobbing, introducing term limits) but would otherwise improve the standing and public perception of politics.

Disadvantages

Who decides who gets to take part? – A Citizens’ Assembly would still be relatively “closed”, though hopefully without the danger of being self-selecting or self-appointing. The selection process in itself is likely to be exclusionary – some people might want to take part but fall short, while a disinterested person gets selected. Even letting an organisation like the Senedd Commission select the participants risks an element of political involvement.

“I’m taking the ball home” syndrome – There’s a danger that if a discussion revolves around a matter which stirs strong emotions (republic vs monarchy, for instance), a meeting might be difficult to control or lead to people withdrawing at short notice because they don’t think they’re being listened to (or don’t get their own way).

Lack of knowledge and expertise – One of the strengths of a Citizens’ Assembly – that it’s a cross-section of the general public – is also one of its great weaknesses. The  majority of people don’t know how government and politics work because it’s often impenetrable and political education is non-existent. There would be a danger of those less familiar with politics and alike being “leaned on” to go a certain way.

Which option is best?

It’s not for me to answer, but for this to have buy-in from the public you would assume there would be some sort of public participation  whilst maintaining some sort of loose control over proceedings – which leans towards either an elected Constitutional Assembly or a closed convention advised by a Citizens’ Assembly.

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