The referendum has come and gone and there is a mix of numbness and relief intermingled into the haar which descended upon Edinburgh several days ago but failed to dampen the electrified atmosphere which accompanied the referendum. It was said long before the referendum even happened, that whatever the outcome, more and deeper constitutional change would be the one certainty in the uncertainty of the election result. This was brought home by the eleventh hour promises by the three parties on the eve of the referendum itself, as well as Cameron’s post-referendum speech which put the English question at the heart of any constitutional reform. As the referendum results are being unpicked with much staring into crystal balls as to what will happen next, two features of the post-referendum debate, such as it is, stand out; many references to the ‘three political parties’ and various options as to what needs to happen next and what types of reform are possible and/or probable: more fiscal powers for the Scottish parliament, a possible English parliament and so on.
With this emphasis on political parties and concrete proposals, the one elephant in the room is mention of the people. It is a virtual cliché at this stage that the one winner of the referendum (apart from the lacklustre ‘No’ campaign) was democracy and political engagement based on the fact that the long two-year campaign involved wide participation from the public with informed debates on almost every dimension of political life in Scotland as well as the extraordinarily high turnout for the referendum (not to speak of the almost pre-Invasion Iraq proportions of voter registration). If this is true, then, if anything should be preserved from the referendum experience, it should be a mechanism to secure and enhance this democratic political engagement and this is why rather than pledges, vows, discussion of taxes and England we need a fully-fledged open and deliberative constitutional convention to deliberate on the constitutional future of the United Kingdom.
If one thing became clear from the referendum, it was the idea that the Westminster Parliamentary system was ‘broken’, so much so that Alex Salmond took to using the ‘Westminster establishment’ as a term of derision in the week before the vote. Yet what we are seeing in the pre-referendum ‘Vow’ as well as Cameron’s post-referendum speech is more of the same; constitutional reform being jealously fought over by the exclusive club of the three main Westminster parties where each party tries to promote or prevent a proposal which will promote or prevent them from getting into power sooner or promote or prevent them from holding onto it for as long as possible. This is precisely what has caused political disengagement and voter disaffection not just in Scotland but right across the United Kingdom.
The Labour party famously said that devolution would kill nationalism in Scotland ‘stone dead’. This week’s referendum goes to show just how wrong they were and that the ‘typically British response’ of pragmatism and piecemeal reform on the recommendations of hopelessly distant Commissions, hand-picked and vetted by the party faithful, is no longer fit for purpose. Independence may be off the agenda for a generation, but the referendum result must not stop the bottom-up political movement for reform of the system. While it is true that arcane constitutional matters do not win general elections, what this week has shown is that they have the potential to cause major constitutional upheaval and for that reason alone, the parties should rise above immediate short-term electoral gain and to see the bigger constitutional picture. This is too important an issue to be left to the political parties and their electoral ambitions.
Therefore, for both principled and pragmatic reasons the United Kingdom needs a full constitutional convention to deliberate on its future. Iceland, Ireland and even the European Union (yes, even that bastion of political non-responsiveness) have all experimented with conventions in the recent past, with differing levels of success, but what they all share was a form of open democratic political engagement which doesn’t take the people for granted once political representatives assume office and puts the most important question of politics, the nature and form of the constitution and the level and distribution of power under it, back into the hands of the people. Early post-referendum signs are encouraging with the Green Party and even David Miliband calling for a constitutional convention but they must be taken seriously and followed through. In the avalanche of proposals and counter-proposals which will be forthcoming in the weeks and months ahead, then, this is a plea for a focus on process over fixed outcomes, democratic means over settled ends, for a more democratic, responsive, and fair constitutional settlement for this (just about) United Kingdom.
This article has first appeared on Verfassungsblog’s cooperation partner, the UK Constitutional Law Blog.