On July 6, the French Prime Minister announced that the government was abandoning the bill to enshrine in the Constitution the preservation of the environment. He invoked the Senate’s inertia to justify renouncing the bill, which needed to be adopted in the same terms by the two houses of parliament. The climate referendum that had been announced by the President of the Republic in December 2020 was thus abandoned. The decision was not a surprise, as many doubted the political feasibility or the actual willingness to implement it. Nonetheless, it was highly symbolic, as this referendum was meant to be one of the most visible outcomes of the Citizens‘ Climate Convention held in 2019-2020. The other one was the “Climate and Resilience” law, adopted on July 20 but criticized for having discarded or watered down many of the Convention’s proposals. This renunciation invites questions about the role and legitimacy of such an assembly, which has been both lauded as a democratic innovation and decried as an illegitimate body. Some lessons can be drawn from the French Citizens’ Climate Convention for the legal regulation and political use of citizens’ assemblies, which are now multiplying around the world.
A limited impact on public policy
The Citizens’ Climate Convention was a citizens’ assembly charged with making proposals for reducing France’s carbon emissions in a spirit of social justice. It was created in the wake of the “Yellow Jackets” protests, as a possible way out of the political crisis sparked by a fuel tax. The Convention consisted of 150 citizens selected through sortition and quota sampling with the aim of creating a somewhat representative sample of the French population. It was conceived as a “deliberative mini-public”, sharing some common features with previous citizens’ assemblies, notably in British Columbia or Ireland. Participants deliberated amongst themselves, in large and small groups, and interacted with experts, during eight weekends from October 2019 to June 2020. They eventually voted on a list of 150 proposals, prepared by thematic committees.
The addendum to Article 1 of the Constitution, stating that “The Republic guarantees the preservation of biodiversity, the environment and the fight against climate change” was but one of the 149 proposals it had adopted. (The main sticking point in the parliamentary debates was the term „guarantee“, as senators did not want the addendum to create an obligation of results, as well as of means.) Other proposals ranged from measures to reduce the carbon footprint of transportation, housing or firms to the criminalization of “ecocide”. Three measures were rejected by the President of the Republic: a tax on dividends, a speed limit of 110 km/h, and a much more radical change to the Constitution (which would have inscribed in its Preamble that constitutional “rights, freedoms and principles” “should not compromise the preservation of the environment, the common heritage of mankind”). However, environmental activists, political observers, and participants to the Convention have since lamented that many of the 146 remaining proposals have also been abandoned or only partially implemented. To date, the Convention’s impact on public policy is seen as limited.
This has been denounced by some as a betrayal of the government’s environmental promises and a sabotage of a bold experiment in participatory democracy. Celebrated by others as a welcome reaction of representative institutions against a illegitimate institutional creation. Yet others have argued that it does not affect the success of the Convention, which resides in its symbolic, experimental, or educational value. While we can’t evaluate such claims here, let’s consider two factors that made such an outcome possible, if not likely, and still fuel controversies about this experiment. These are the ambiguous role of the Convention and the uncertain basis for its legitimacy.
Both factors are facilitated by the novelty of citizens’ assemblies and the lack of a legal framework regulating their use. While Article 7 of the 2004 Charter of the Environment, which is part of the French constitutional block, states that „every person has the right […] to participate in the preparation of public decisions affecting the environment“, citizens’ assemblies do not fall under this clause, as they limit by design citizens’ participation in order to create a representative sample. Indeed, the Convention was not organized by the French National Commission for Public Debate, the independent authority responsible for guaranteeing this right to participation. Therefore, its purpose and impact ultimately depended on the will of the President of the Republic. It has thus rightly been described as a form of “soft constitutional law”: its creation was neither regulated nor prohibited by the French Constitution, and it did not have any the power to make legally binding decisions.
An Ambiguous Political Role
A citizens‘ assembly can be assigned different objectives, and its institutional characteristics can vary accordingly. But the role of the Convention was unclear from the start.
A first ambiguity concerned the advisory or binding nature of its proposals. The President of the Republic had repeatedly said that the proposed measures would be passed on, “unfiltered”, either to the government, the parliament, or the electorate. This promise could be interpreted as meaning that he was committing to adopt their proposals as they were, or, rather, that the members of the assembly had to produce immediately implementable, legally-sound proposals, if they wanted them to translate into actual public policy. Any political pledge to treat the outcome of the Convention’s deliberations as binding could, in any case, only be a promise. According to the mission statement sent by the Prime Minister to the Economic, Social and Environmental Council, which set up the Convention, the government only committed “to give a public response” to its report. And the French Constitution does not allow the executive to bypass the parliament, which alone „votes the law“ in the words of its Article 24. Despite the political rhetoric suggesting otherwise, the Convention only had an advisory role. Emmanuel Macron made it clear later on, when criticized for not keeping his “unfiltered” promise: he did not have to consider that “because these 150 citizen wrote some stuff, it’s the Bible or the Koran”.
A second ambiguity concerned the kind of proposals to be produced. The procedures to be activated to decide their fate was left open: referendum, parliamentary vote, or governmental action. This procedural indeterminacy was presented by the government as a proof of the leeway given to the assembly, but this kind of openness also makes effective deliberation much more difficult. Advising a general course of action; writing a referendum proposal, to be submitted as such to the electorate; drafting a bill, destined to be subjected to parliamentary amendments; issuing decrees, meant to be directly implemented, are distinct tasks. In representative democracies, different bodies, with varying powers, expertise and obligations, are charged with them. To leave open the procedural outcome is to disconnect the institutional features of the assembly from its function.
A third ambiguity concerned the nature of the task given to the convention. While its mission was explicit, it was also excessively large: to „define structuring measures to manage, in the spirit of social justice, to cut France’s greenhouse gas emissions by at least 40% by 2030“. This makes the Convention quite different from citizens’ assemblies which were held on much more narrowly defined issues, such as repealing an abortion ban or proposing an electoral reform. It was expected to develop a comprehensive set of environmental, social, and fiscal policies in eight weekends – a tall order, even for committed and resourceful citizens. Such a broad mandate makes participants heavily dependent on the advice of experts, including jurists, as the knowledge they can acquire in a few months is limited. It also invites them to produce a long list of heterogeneous measures, allowing the government to cherry-pick and critics to claim they have failed to deliver a coherent plan of action for the future.
These ambiguities are interrelated, as the appropriate scope of a political body’s mandate depends on its normative power and on the proposals it has to produce. Together, they created uncertainty regarding the role the Convention, weakened its ability to impact public policy, and set expectations that could hardly be met. But they are in no way intrinsic to citizens‘ assemblies per se. Rather, they result from the way the Convention was set up.
A disputed political legitimacy
Another factor explaining its limited impact and contested status are fundamental disagreements regarding its legitimacy.
The Convention has been denounced by some, including elected representatives, as an “entirely illegitimate gadget”, undermining the authority of the parliament. However, election is not the only source of political legitimacy recognized in representative regimes, where a key role is given to independent administrative authorities, expert agencies, and judicial bodies. Just as citizens’ assemblies can serve diverse purposes, they can derive their legitimacy from several sources. These all have to do with their defining feature: the combination of deliberative procedures with sortition and sampling methods. A greater diversity of social perspectives – compared to elected assemblies and parliamentary committees – may offer an epistemic advantage. A greater similarity to the socio-democratic makeup of the population may have symbolic virtues. A greater independence from partisan cleavages, the electoral cycle or the constraints of political professionalization may be a gain in terms of impartiality. The value of such features depends on the context, but there is no serious reason to deny citizens’ assemblies any legitimacy.
There is, on the other hand, good reasons to reject another alleged view of their legitimacy. It has sometimes been argued that the Convention represented the whole citizenry, in a political sense. This time, it was suggested, “the French citizens” would be able to make their voice heard directly and to express their will on ecological matters without mediation. This claim may be understood in several ways, all problematic. The peculiar rhetoric of exclusive incarnation, so often used in French electoral politics, was in a sense simply transferred to an assembly drawn by lot. But a more specific idea was also at play: the deliberation of a group of ordinary citizens, statistically representative of the population, could reflect what the deliberation of the whole people would be, if they were to deliberate. The convention could thus let us know what an enlighten citizenry would want. However, this counterfactual claim, sometimes made in the context of deliberative polling, is unfounded. Let us leave aside the question of the actual statistical representativeness of the Convention’s members (limited, among other factors, by the small size of the sample). Even if their opinions were, at the outset, “representative” of the population’s opinions, it does not follow that they still were at the end. First of all, deliberations under similar conditions do not always lead to the same result; it is therefore unwarranted to treat the outcome of a particular process as mirroring the others that could have been. Furthermore, the counterfactual claim has no clear point of reference: there is no sense in which the citizenry as a whole could deliberate in the same way as 150 individuals, or under similar conditions. Some have also argued that the assembly politically represented the citizenry because participants were “ordinary” citizens. But being “ordinary” simply means not having been elected – an insufficient, if paradoxical, ground for political representation. This is all the less convincing as a deliberative procedure taking place over several months is bound to actually increase the difference of perspectives between the participants and the “ordinary” citizens. The Convention’s members clearly judged so themselves, as they voted not to submit most proposals to a referendum, fearing that the electorate would reject them.
Such a view of legitimacy is not only flawed, but hazardous. Firstly, to claim that the assembly’s legitimacy lies in the participation of “ordinary” citizens, without mediation, ignores the role of the organizers as well as the significant input from technical experts and jurists. While their influence may be inevitable, and is to a certain extent justified, it should not be forgotten. Secondly, if a citizens’ assembly stand in for the people, the very idea of submitting its proposals to popular or parliamentary approval becomes redundant. The most ambitious feature of previous assemblies, in British Columbia or Ireland, was the combination of the deliberative mini-public and the referendum, bringing together small-scale deliberation and large-scale participation. This presupposes a division of labour, rather than a relation of representation, between the assembly and the electorate. Thirdly, such a view can only pit the citizens’ assembly against the parliament, as their rivalry is then not only about the accomplishment of a particular task, but also about the representation of the people. Such a competition is bound to weaken both institutions, to the potential benefit of the executive power.
Linking the legitimacy of citizens’ assemblies to their institutional features – their epistemic advantage, symbolic virtues or guarantees of independence – allows, in contrast, to avoid such pitfalls. This also invites not to conceive of these assemblies as stand-alone institutions, which would condemn them to powerlessness, but to reflect on the appropriate way to insert them in the institutional political architecture.
For citizens’ assemblies to fulfil their promises as public policy instruments, and not only as symbolic events, their role and legitimacy need to be specified. A legal framework, clarifying their place in the constitutional order, could help regulate their use and limit their misuse.