Ireland’s Constitutional Convention: Behind the hype about citizen-led constitutional change

Abstract

Ireland’s Constitutional Convention is one of a number of recent examples of ordinary citizens becoming involved in constitution-making processes. These participatory experiments are often praised by democratic scholars. That has been the case with the Convention, which has already been cited as an example for any future process of constitutional change in Britain. This article argues that the Irish experience has been oversold. The process in fact suffered from a number of serious limitations that undermine its claims to either representative or deliberative legitimacy. The approach taken to its composition, agenda, expert advice and evidence was problematic in several respects: opaque, apparently ad hoc and with inadequate attention to the risks of bias and manipulation by elite actors. The Irish experience provides a warning about how the symbolic value of the ordinary citizen can be exploited for political purposes.

1. Introduction

Whether by reason of the deliberative turn in democratic theory ¹ or the anti-political impulses of a continent experiencing the aftermath of an economic and governance crisis, there has been a clear trend towards participatory—or populist—themes in recent European discourse on constitutional change. Since 2009, political and constitutional reform has been considered by bodies comprising ordinary citizens—often called “citizen assemblies” or mini-publics ² —in at least four European countries. ³

As the only one of these four experiments to enjoy the full support of the political establishment, Ireland’s Constitutional Convention ⁴ provides perhaps the most useful example of participatory deliberation under real-world conditions. It is also important because of the way in which it has already been cited as an example to be aped: an argument that seems to have particular resonance in the United Kingdom’s post-Scottish referendum constitutional discussions. ⁵

This view of the Irish experience as a model to be emulated reflects the fact that academic commentary on the experience and outcome of the Convention has been largely positive. ⁶ However, it is also fair to observe that much of academic commentary on the Convention has come from those who initially advocated it or were involved in its operations. ⁷ External commentary has tended to take at face value the assurances of individual participants, the chair or the academic experts involved that the Convention was a positive and valuable experience with substantial benefits for participants as well as for society as a whole. This endorsement of the Convention experience is typical of how the “global movement to institutionalise lay citizen deliberation” ⁸ has been perceived. Leib and Elmendorf have observed that “[d]eliberative forums are routinely idealised as post-partisan affairs,” ⁹ a phenomenon first exemplified by how the earliest British Columbia experiment received “rave reviews from both their participants and their academic observers” ¹⁰ with “a celebratory, at times euphoric, tone.” ¹¹ The fact that a novel and demonstrable egalitarian approach to civic participation in high-level constitutional politics is likely to be broadly welcomed should not be surprising. This instinct towards the celebration of ordinary citizens should not, however, obviate the necessity for rigorous analysis of not only the strengths of such fora, but also of their potential weaknesses. To put it simply, involving the people (or, more accurately, some people) in the process provides no guarantee that those people will—or indeed should—be listened to. In fact, a close analysis of the Irish process reveals significant limitations that should serve as a warning rather than as an exemplar to other jurisdictions interested in mini-public mechanisms.

2. The case for a participatory mini-public

2.1. The democratic case for unelected citizen input

The Irish experience is simply the latest in a growing number of experiments in entrusting constitutional questions to a deliberative forum comprising individuals who are neither elected nor experts in the field. These bodies are intended to represent the position of so-called ordinary citizens. The most famous and well-known early experiments occurred in British Columbia where a citizens’ assembly was held to consider reform of that state’s voting system. ¹² The growing popularity of participatory citizen-led assemblies in the constitutional domain raises two preliminary questions: what are the factors influencing the growing popularity and interest in these techniques and secondly how can their use be justified?

The first and perhaps most influential factor in the popularity of citizens’ assemblies is a growing disenchantment with the performance of elected institutions. It is a truism that the public have become increasingly disillusioned with the electoral process. As Peter Mair ¹³ and others have documented, ¹⁴ there is a public perception that democracy has been hollowed out as elected institutions, being dominated by special interests, respond increasingly to the demands or interests of the few rather than the many.

This crisis of public confidence in elected institutions has coincided with a rise in academic interest in theories that treat democracy as more than the episodic aggregation of electoral preferences. In this context, “[n]o subject has been more discussed in political theory in the last two decades than deliberative democracy.” ¹⁵ These deliberative theories emphasize the value and necessity for political decision making processes to be animated by considerations of reason, rationality and evidence. Deliberation is argued to promote rationality ¹⁶ and regard for others ¹⁷ by encouraging a “[real] dialogue … a face to face conversation sustained over time rather than merely metaphoric or at best impersonal, episodic and coerced,” ¹⁸ Such “real and sustained dialogue” is also seen as more likely to promote broad public interest goals, a characteristic that is typically contrasted in the literature with a view of electoral or competitive theories of the democratic process as concerned with the satisfaction of sectional interest.

Furthermore, the empirical experiments in participatory democracy conducted by Fishkin et al. ¹⁹ have provided demonstrable support for the suggestion that these citizen composed institutions can provide added value to public decision making processes. ²⁰ There is now a relatively established track record of citizen-led processes being used to address issues from constitutional or political reform at national level to more micro-level issues such as local budgeting in China, housing in California, energy questions in Texas and Nova Scotia and regional economy issues in Connecticut. ²¹ The apparent success of many of these processes has persuaded others of their potential value.

2.2. The normative legitimacy of citizen-led assemblies

While these factors may explain the increased interest in participatory forms of constitution deliberation, what are the normative justifications for this trend? As the preceding discussion indicates the very fact that such bodies are unelected has been argued by many to supply its own normative justification. The assumption that these bodies are likely to offer an alternative perspective is argued to justify their involvement in the consideration of a new constitutional order. It is important not to overstate the degree to which advocates of participatory or deliberative processes favor their use relative to those of elected institutions. The fact that they are unelected is generally regarded as providing a complementary legitimacy, rather than one that is in any way pre-eminent to those of the elected institutions. The idea is instead that “independent unelected officials and bodies . . . appointed under suitable conditions and are forced to operate under suitable constraints . . . too may have a claim to serve the people in an indicatively representative way.” ²²

“The theory of minipublics derives the legitimacy of the institution from two key conditions: representativeness and deliberative standards.” ²³ As Fishkin puts it:

Suppose a microcosm is a good representative sample and that it engages in a substantive and balanced deliberation, what is accomplished? A representation of what the people would think under good conditions, a representation embodying both political equality and deliberation. ²⁴

It is upon this combination of representative composition and genuine deliberation that the case for citizen-animated input into the constitution-making process depends.

It should be noted in passing that these conceptual arguments in favor of citizen assemblies have been subject to a degree of empirical skepticism. The argument that these institutions will identify an outcome which the public would adopt under ideal conditions is plainly a form of thought experiment analogous to the Rawlsian veil of ignorance and therefore subject to the same type of criticisms which that has attracted. ²⁵ In reality, it seems more plausible that such institutions would reach different outcomes depending on the identity and personality of the individuals involved, the information presented to them and the form and content which their deliberations take.

Empirical questions have also been raised about the representative dimension of the mini-public’s legitimacy, given that its members will, by the time of their final decision, be likely to have acquired a degree of expertise and information beyond that which would typically be available or acquired by the average citizen. ²⁶ However, while that may be relevant to the ability of citizens to advocate a final outcome as “ordinary citizens,” it would not undermine the argument that the members’ final views represent those of the—or, perhaps, some —ordinary citizen under ideal deliberative conditions.

While there is scope for empirical skepticism about the more idealized claims about mini-public outcomes, the fact that these institutions may not necessarily provide the right or representative answer does not mean that their decisions do not deserve some degree of respect. At the very least the bodies are likely to provide a perspective that is different, that has a degree of democratic legitimacy in the sense articulated above, and which may be politically saleable, given that it reflects the views of a selection of ordinary voters after having certain arguments and information provided to them.

What an analysis of the normative case for mini-publics makes clear, however, is that there is no democratic magic in the arbitrary assembling of ordinary citizens. In theory, it seems clear that bodies that combine a descriptively representative function with deliberative decision-making processes can provide a useful input into public or political discourse about constitutional questions. The actual representative and deliberative legitimacy of these bodies is process dependent. This means that it is not enough that an assembly simply looks representative or conforms to a statistically valid sample. The way in which the body acquires information, understands that information and engages with it is also important to the legitimacy of its eventual decision. It is these aspects of the Irish experience that are examined in the remainder of this article.

3. The establishment of the Irish Constitutional Convention

3.1. Background to its establishment

The origins of the Irish Constitutional Convention lay in the economic crisis that engulfed the country in late 2008. The failure of Ireland’s governmental institutions to anticipate and then adequately address the economic difficulties contributed to a substantial decrease in recorded levels of trust in the Irish government. ²⁷ This prompted widespread public and media demands for political and institutional reform. For the 2011 general election, political reform featured as a prominent theme in the manifesto of all the major political parties in a way that was “without exception and with a focus that has never been seen before in Irish electoral history.” ²⁸ Alongside these public demands for reform, came a series of high-profile calls for citizens to be involved in the reform process. These calls were led by a small group of academics, who were heavily involved in advocating a citizens’ assembly via an online political reform forum, ²⁹ opinion pieces in leading Irish newspapers, and by organizing a pilot assembly to demonstrate the potential of the process. This “We the citizens” pilot was established shortly after the 2011 general election in a manner deliberately designed to put or keep citizen participation on the public agenda.

The rationale for this project was to feed very deliberately and publicly into the political reform agenda, the principal objective being to demonstrate the value of citizen-oriented deliberative approaches to achieving large scale political reform. In short this was more than just a research project; it also represented an effort by Irish political science to contribute actively to policy. ³⁰

When the Convention was ultimately established, it differed in several significant ways from the models promoted by academics and which had originally been promised by the political parties in their various manifestos. Whereas one government party had promised a citizen-led overhaul of Ireland’s constitution as a whole, the final terms of reference were considerably less ambitious in their content and in their scope. Similarly, the composition of the assembly differed from that originally advocated by the academics and the manifestos of the government parties. Ultimately, the decision was taken to combine the involvement of ordinary citizens with representation from the political establishment. The Convention comprised sixty-six ordinary members of the public, thirty-three political representatives and one independent chair. Four of these members were also drawn from Northern Ireland in order to provide some input from that jurisdiction.

3.2. The initial response to its establishment

In general, the early media and public response to the Convention was skeptical. Criticism tended to focus on one of four issues. First of all there was extensive criticism of the terms of reference or issues, which were committed to the Convention. The topics identified by the government for consideration by the Convention were described by commentators as “a handful of relatively inconsequential issues,” ³¹ “a few trivialities” ³² that amounted to “hardly transforming stuff.” ³³ Donncha O’Connell’s description of the Convention as “a quasi-therapeutic encounter between a selection of politicians and a glorified focus group of citizens” encapsulated this concern. ³⁴ The questions committed to the Convention touched on issues which had rarely, if ever, attracted public comment or interest. Its terms of reference included lowering the voting age from 18 to 16, decreasing the term of office of the president (a largely ceremonial position in Ireland) from seven to five years, and removing a dead-letter ³⁵ reference to blasphemy in the constitution. Presenting these as major questions for reform was quite reasonably decried by constitutional experts as “a joke.” ³⁶ Even the entrusting to the Convention of more potentially significant questions such as whether or not to amend the constitution to provide for same-sex marriage was regarded with some plausibility by commentators, as a “deeply cynical exercise” ³⁷ as it effectively allowed a coalition government, the respective components of which were reported to have different views on this policy, to pass the buck to an alternative institution, thereby avoiding the political cost and responsibility for leading on this issue.

A second form of criticism tended to refer to the composition of the assembly and, in particular, to the involvement of elected representatives. It was argued that these figures, both by virtue of their personality as well as their experience with constitutional politics, would be liable to dominate discussions within the Convention and to have an undue influence over the final outcome. ³⁸ More generally, the involvement of figures drawn from the political establishment was argued to provide a bulwark against radical reform of the status quo. When, for example, the Convention came to consider reform of the electoral process, the inclusion of thirty-three members selected by and therefore with a vested interest in preserving the existing process might be expected to minimize the possibility of substantial change.

On the other hand, it was contended that the experience in British Columbia, where the outcome of the citizen assembly deliberations was ultimately rejected by the people, underlined the necessity of obtaining support from the political establishment in the operations and outcome of the process. Arguably, this has also been borne out by the Icelandic experience, whereby the deliberations of that jurisdiction’s citizen-led constitutional reform process were ultimately rejected by some major political parties on the basis that it was not representative. ³⁹

A third and vocal category of criticism came from so-called civil society groups who wished to be represented within the Convention body. A number of these organizations came together to campaign for a power to directly appoint a number of members ⁴⁰ on the basis that they represented particular perspectives within Irish society. However, as John O’Dowd has pointed out, the democratic legitimacy of this demand seems questionable. ⁴¹ To put it bluntly, it is not immediately obvious why the Coeliac Society of Ireland or Irish Association of Youth Orchestras (who were among the groups advocating the inclusion of their nominees) should have greater access to the constitutional change process than other citizens.

Furthermore, as David Landau has outlined, the experience of constitutional reform in Venezuela has highlighted the danger that civil society’s enthusiasm for the constitutional recognition of particular sectional demands can be used to provide a veneer of legitimacy and acceptance for a constitutional settlement which is objectionable in other areas. His assessment is that “very high levels of participation by civil society had no real impact on the final product, but rather tended to affect peripheral provisions that were unimportant to Chávez and constituted mere window dressing. High levels of civil society participation did not prevent the constitution from being used to impose a competitive, authoritarian regime.” ⁴²

Finally, a further category of criticism was that the government had “deprived the [Convention] process of adequate resources.” ⁴³ Given the constraints on the public finances at the time of the establishment, this criticism was relatively rarely expressed. Nonetheless a number of individuals did point out that the limitation of its expenditure to €900,000 seemed potentially inadequate and, arguably, “underscored the lack of political commitment to the enterprise.” ⁴⁴ While this criticism attracted comparatively little attention when compared to the issues raised about the composition and content of the Convention agenda, it arguably had a more profound influence on the way in which the Convention was organized and in particular on its capacity to adhere to what the deliberative literature might regard as best practice. This is an issue which will be further addressed later in this piece.

3.3. The Convention: a preliminary assessment

Overall, therefore, while the establishment of the Convention attracted an array of criticism, it seems clear in principle that the Convention as designed and established was entitled to lay a reasonable claim to democratic legitimacy, at least as that is conceived by advocates of citizen-led fora. That the Convention could have been designed differently or could have been organized to emphasize alternative norms or values does not mean that the decisions taken are not in themselves capable of being defended. In fact, even the criticism most commonly voiced about the limited and inconsequential nature of the Convention agenda was, on one view, addressed by the specific inclusion in its’ terms of reference of an entitlement to make recommendations on additional issues additional issues as it saw fit.

However, as the earlier review of the literature indicates, the establishment of a deliberative forum with a citizen component is only one aspect of a genuinely deliberative process. Arriving at a composition which provides descriptive representative legitimacy only provided the framework for participants to engage in a process of decision making. All of those theories that advocate the use of such fora assume and therefore logically require that the body also acts in a deliberative manner. As the remainder of this article will contend, a closer analysis of the Irish Constitutional Convention reveals procedural frailties that substantially weaken its legitimacy claim.

4. Assessing the legitimacy claim in context: the Convention in practice

4.1. The composition of the Convention

The first category of procedural concerns relates to the way in which the citizen component of the Convention was recruited. The organizers of the Convention appointed a polling company to identify a statistically representative sample of citizens that was adequately diverse in terms of geography, gender, and age. ⁴⁵ As previously noted, the degree to which such a body is statistically representative is key to the claims of legitimacy that can be made on its behalf. A question which arises, however, is whether such statistical representativeness is by itself adequate to assure the legitimacy of the body. This issue was starkly highlighted by a report which emerged in the early weeks of the Convention that a number of the so-called ordinary citizens of the Convention were in fact known to each other.

This had initially not been evident by reason of a controversial decision not to identify the citizen members of the Convention. However, following sustained criticism in the media, ⁴⁶ it was ultimately decided to publish the names and limited details of the ordinary members’ addresses. Following publication, it was reported that two of the individuals were in fact married to each other and that another two were next-door neighbors. ⁴⁷ In addition, it was further reported that the married couple had been recruited after one of them who had been approached suggested that her partner might also be interested in participating in the Convention. That the polling company was willing to entertain this suggestion and in fact to recruit that person raises obvious issues concerning the randomness of the sample selected. Further concerns were expressed about the fact that their relationship was not notified to other members of the Convention and that both sought to be selected for membership of the Convention’s internal organizing committee.

The difficulty with allowing the effective nomination of specific ordinary citizens is that it removes the element of chance that seems critical to the legitimacy of such institutions. The essential appeal of recruitment via random selection is its funda mentally egalitarian character (in the sense that any citizen has an equal chance to be appointed). It would be plainly and intuitively unacceptable for jury members to be allowed to suggest other persons with whom they would like to serve. A process in which individuals are entitled to suggest peers or persons who deserve special consideration evidently lacks the necessary egalitarian quality to ground its legitimacy claim.

A related concern with this selection process is the doubt it casts on the diversity of attitudes present within the Convention. This is an important issue given the empirical evidence that diversity is necessary for effective deliberation. ⁴⁸ While a sample may be statistically representative, that does not necessarily mean that the members are subjectively representative of the attitudes that exist within the community at large. It might be thought that this is particularly the case if individuals are entitled to suggest an other person with whom they might be expected to share particular views, attitudes and opinions. This suggests that the way in which the citizen component of the Convention was assembled undermines the egalitarianism and “ordinariness” that seems critical to its symbolic and normative legitimacy as a representation of the average citizen.

4.2. The operation of the Convention

The Convention’s internal procedures also warrant closer scrutiny. As Claude Klein and András Sajó have pointed out, “the recent scholarship [on constitution-making] emphasises the decisive importance of procedural rule setting in group dynamics in decision making.” ⁴⁹ This reflects the fact that—contrary to the mini-public claim to procure the presumptively unitary position, which the public would reach under ideal conditions—decision-making procedures are not neutral mechanisms for translating individual positions into a collective will. A decision reached by a multi-party process is not a crystallization of a singular or objective truth but is the result of a series of procedural strategic and institutional decisions that variously allocated power and influence to participants throughout the process. ⁵⁰

Unfortunately, the internal processes applied by the Convention were notable for their lack of transparency. It was not only, as previously noted, that the Convention initially sought to prevent identification of its “ordinary” members. This lack of transparency extended to other, arguably more important, matters. No guidance was issued, for example, about the principles or procedures applied to agenda-setting, to the recruitment of experts ⁵¹ or to the identification of persons to advocate for and against the proposal being considered by the Convention at any given time. This could be taken to suggest either a deliberate concealing of these dynamics or (perhaps more plausibly) a lack of awareness about their importance. Regardless of the motivation, the absence of any clear rules or principles by which to regulate the Convention’s procedures is normatively troubling. Such procedures are critical to the pursuit of a fair, representative and deliberative process, especially in light of the evidence from previous mini-publics about the potentially decisive influence of expert input. ⁵² That no information is available about how—or if—these issues were decided, cannot but impugn the legitimacy of the Convention process.

Perhaps the most useful illustration of this concern is the way in which the Convention exercised the freedom given to it to consider “such other relevant constitutional amendments that may be recommended by it.” ⁵³ This provided the Convention with an open-ended mandate which, given the limitations imposed by the political establishment upon the majority of other topics committed to it, provided arguably the most significant opportunity for genuinely citizen-led reform. Yet, there was a notable lack of transparency or clarity about how these decisions were made. Certainly, the Convention made conspicuous effort to solicit submissions from the public using multiple channels. No indication was given, however, about the processes or criteria by which the submissions would be assessed. This is important given the potentially varying legitimacy of different methods of selection. Using sampling, for example, could be argued to provide a relatively objective technique for identifying common and thus presumptively representative themes. ⁵⁴ Subjecting the submissions received to peer review would, by contrast, rest the legitimacy claim on expertise rather than representativeness. ⁵⁵ In the absence of any information about the editorial criteria applied, however, the risk is that Mark Tushnet’s assessment that “these comment processes are more often cosmetic than substantial” ⁵⁶ is also applicable to the Irish process. ⁵⁷

This seems especially problematic given the reported comments of the chairman in an interview with the Irish Times where, in considering the question of what additional issues might be considered by the Convention, he made reference to “a number of the general interest groups who are involved in this process.” ⁵⁸ Given the express—and arguably correct—decision of the government not to involve such general interest groups in a special or specific way in the Convention process, this gives rise to an impression of special access for certain groups by the back door.

This impression is strongly supported by the fact that the Convention ultimately chose to examine the question of whether the Constitution should be amended to include additional socio-economic rights. Since a controversial decision of the Irish Supreme Court in 2001 to refrain from issuing mandatory orders to enforce the State’s constitutional obligation to provide for free primary education, ⁵⁹ the issue of socio-economic rights has been a central preoccupation for groups operating in the Irish voluntary or civil society sector. Yet, it is also fair to point out that the issue is one which tends to feature more prominently in the campaign literature of these advocacy groups than in public surveys of pressing political reforms. That is not to say that it is not a valid subject for the Convention to consider. The point is that it is unclear how or why it was chosen from the many potential topics available. That it is an issue strongly associated with a particular sector; that the chairman himself previously headed an organization operating in this sector; and that the chair made reference to unnamed groups having an unspecified and unofficial role “in this process” all highlights concerns about the extent to which the procedures and decision making processes applied by the Convention were susceptible to excess influence from specific elites. That those elites may have been liberal, charitable or voluntary in character does not make their involvement unobjectionable. As Dryzek has remarked, “social movement . . . do not merit uncritical celebration” because of how they can foster “an oligarchy of the enthusiastic” ⁶⁰ under which influence is given to “those who can shout loudest and longest.” ⁶¹ Such an inequality of access and influence over the Convention’s agenda substantially weakens its descriptive and deliberative legitimacy.

5. Conclusions

What does this brief overview indicate about the success or otherwise of the Irish constitutional Convention? Certainly, the process seems to have been a positive and engaging experience for participants. As has been the experience with other experiments in participatory deliberation, the Irish experience confirms once again—if confirmation was needed—that citizens are capable of engaging in a serious manner with complex questions of constitutional or political reform. Both media commentators and those political representatives involved in the process seemed less skeptical about the positive possibilities than they were at the outset. In the long term, the fact that the Irish political system now contains a cohort of representatives with a positive attitude to deliberative citizen-composed fora of this sort may prove to be significant. Indeed, there have already been calls by various individual political figures for a similar process to be used for other controversial constitutional questions in Ireland, such as abortion. ⁶²

At the same time, however, it does seem that the almost universally positive assessment of the process may be overstated. On the contrary, a degree of circumspection appears appropriate in considering the success of the Convention. The first and most obvious point of criticism is the fate of the Convention’s re commendations. While the government committed in advance of the Convention to respond within a prescribed period to each of the recommendations, there was no political commitment equivalent to that provided in British Columbia that the recommendations would be put to the people automatically and without additional political input. Ultimately, the Government committed to hold referenda on only two of the Convention’s 18 recommendations for constitutional amendments. Given that this Government veto was in place in advance of the Convention’s establishment, it does not seem fair to treat the Convention as a failure because it did not achieve what was never possible. Indeed, as Dryzek has observed, allowing deliberative fora or other mini-publics of citizens to actually make policy “almost never happens.”

Furthermore trusting—or abdicating responsibility for—the formation of constitutional policies to a body of this sort could arguably raise legitimacy questions of its own. Even those theorists who strongly advocate for the use of such mechanisms tend to envisage them as complimentary forms of representative input into a publicly deliberative process. The empirical weakness of the claim to embody the collective will under ideal conditions by itself would seem to exclude the possibility of a mini-public being given a primary or monopolistic position in policy formation. Even the British Columbia assembly did not enjoy a predominant position given that its decisions ultimately were subject to a ratification requirement by a vote of the people. Thus, the criticism that has been most commonly voiced in respect of the outcome of the Convention—namely that its recommendations are subject to review by elected representatives—is not as inherently objectionable as it may first appear.

In fact, this line of criticism arguably typifies a greater danger with the dominant response to the Convention which is the relatively uncritical academic enthusiasm for it as an instrument of constitutional reform. Even the initial choice of nomenclature for the assembly foreshadowed the overstated claims that would come to be made on its behalf. The label “constitutional Convention,” evoking most prominently the assemblies that led to the adoption of the American constitution implies a special status for this body as a distinct and arguably superior voice in the constitutional space. ⁶³ There are, however, inherent risks and potential dangers in cloaking special bodies in the popularly symbolic garb of the deliberative People without paying adequate attention to the way in which such assemblies are established or operationalized. The Irish experience shows the way in which the symbolic value of the popular assembly can be exploited for less high-minded short-term political interests. Requesting the Convention to consider the issue of gay marriage, for example, was generally regarded by commentators as an attempt to manage differences of opinion on the issue between the parties that currently form Ireland’s coalition government. The potential for citizen-led or citizen-oriented participatory processes to be used for political buck-passing should not be underestimated.

More fundamentally, the entire Convention process served to delay and ultimately defuse the demands for political reform which had been so prevalent in the immediate aftermath of Ireland’s economic crisis. Establishing a lengthy institutional process to examine potential reforms is an obvious way for an elite to efficiently entrench their position until such time as the pressure for reform has dissipated. Ostentatiously involving ordinary citizens in this process, particularly where the political elite retain control over its agenda and over the ultimate outcome of the process might cynically be seen as providing only an impression of consultation or commitment to reform.

The fact that the Convention appears to have been subject to excess influence from civil society groups confirms the necessity for caution in responding claims of inherent democratic, popular, or constitutional legitimacy on the part of such bodies. The way in which the Irish Convention’s “agenda items or narrative . . . sometimes reflected the interests of the academics” ⁶⁴ highlights similar risks with the influence of an assembly’s experts. Just having so-called ordinary citizens in the room is not enough to assure them of influence or autonomy. Nor is it sufficient to confer specific validity or status on their ultimate conclusions. The outcome of the deliberative process will be shaped by decisions made in relation to the composition of the assembly; the way in which its members are identified, selected or appointed; about the organization of its agenda, its collation or presentation of information; the degree of access, if any, given to specific groups; and the role of experts in guiding the deliberations of the body.

This suggests there may be a specific necessity to ensure that procedures are designed so as to guard against or minimize the potential for a lack of balance in the material placed before the mini-public. This should apply to the procedures used to manage inputs from both experts and any “public” consultation process. It is excessively naïve to assume—as sometimes appeared to be the case in Ireland—that expertise automatically ensures the objectivity and neutrality of the information provided. Similarly, simply offering the opportunity for unsolicited submissions from the public does not mean that the material received—or the material selected from that received—can be taken to represent the public as a whole.

More generally, the limitations of the Irish experience underline the necessity for greater transparency around question of process, most notably: the identification, recruitment and selection of independent experts; the procedures used to identify and select speakers for and against the various propositions considered; the decisions made by the Convention’s steering group in relation to the agenda and organization of Convention topics; and the procedures applied to guide the Convention’s engagement with the public comments and submissions received. None of these issues were considered in a public or accessible manner, substantially undermining the plausibility of the Convention’s claim to democratic legitimacy. The Convention in many ways operated a very visible and transparent process. A sizeable portion of its proceedings were streamed live on the internet. All of the documentation from experts as well as from those advocating for or against a proposal was made available on the Convention website. The Convention also organized a number of public meetings in various locations around Ireland in an effort to encourage public participation in the process. Thus in many respects the Convention operated as a consciously public-facing institution which made a substantial effort to engage with and bring its work to the attention of the general populace. That is not the same, however, as opening up the relevant workings of the Convention to public scrutiny. ⁶⁵ The difficulty is that the Convention’s commitment to full transparency around its various set piece procedures was not matched with equal levels of openness about the type of internal workings that—the literature would suggest—are critical in shaping the nature, content and ultimate outcome of the Convention’s deliberations.

It should also be observed that many of these weaknesses can ultimately be traced to the lack of resources available to the Convention. The very limited funding provided to it by the government meant that it was compelled to rely on the goodwill and voluntary efforts of its members, its experts and advocates. It also necessitated a dependence on outside parties to produce suitable agenda items, arguments and evidence. A process that is required to make extensive use of the self-interested, the enthusiastic, and the zealous will, however, inevitably carry with it a heightened risk of partisan influence or bias. The obvious method of avoiding this would be to ensure that members are paid at a level likely to overcome the randomly selected citizen’s reluctance to participate. The financial limitations also meant that the opportunities for members to deliberate on any issue were confined to a single two-day period. ⁶⁶ Resource constraints thus adversely impacted on both the representative and deliberative legitimacy of the Convention. This highlights the relationship between resourcing and a citizen assembly’s capacity to properly fulfill its intended function.

Overall, therefore, Ireland’s constitutional Convention provides yet another tangible demonstration of the potential of this type of deliberative mini-public. The experience illustrates the capacity and willingness of citizens to engage as well as the enthusiasm for at least some commentators for such alternative mechanisms of political engagement. However, the experience also draws attention to the potential for this enthusiasm to foster insufficiently critical attitudes to both the deliberative procedures and their ultimate outcome. Indeed, a review of the literature on specific deliberative experiments generally suggests that there is a particular need for academics to be cautious in the claims made about these bodies. It is notable, for example, that much of the commentary on citizens’ assemblies comes from those who are personally involved in either advocating for or organizing the events. The potential for a degree of positive bias here is obvious. More generally the promise of such assemblies in presenting an alternative to political decision making processes that is more rational, more informed, more evidence based and more open-minded to alternatives has an intuitive appeal to academics given the extent to which these values correspond to their professional norms. Cynics might also point out that these bodies are likely to provide academics with their best opportunities to positively influence public policy. This instinctive or intuitive enthusiasm for the prospect of informed, citizen-led deliberative decision making should not blind commentators to the risk of misplaced optimism that could, in the context of real-world constitutional politics, create opportunities for “destabilising and dangerous” manipulation, “allowing particular individuals or groups to threaten democratic order in seemingly legitimate ways.” ⁶⁷ The process of involving ordinary citizens in considering their constitution has potential but that potential can be both negative and positive. It remains, like any other form of collective decision-making, a process with an innate susceptibility to specific and systemic frailties and bias. Its symbolic power should not obscure the essentiality of careful procedural scrutiny and design.

1

Frank Fischer, Democracy & Expertise: Reorienting Policy Inquiry 77 (2009): “Since the early 1990s, talk about deliberation in democratic theory has become something of a growth industry.”

2

Simone Chambers, Rhetoric and the Public Sphere: Has Deliberative Democracy Abandoned Mass Democracy? , 37 Pol. Theory 323, 329 (2009): “Mini-publics are exercises in deliberative democracy in which citizens come together to discuss and decide on public policy. They are mini because they are small scale, manageable, and indeed designed settings. They are publics because there is usually some claim that deliberation mirrors, represents, or speaks for some larger public.”

3

The two best known are the Irish Convention and Iceland’s experiment, for which see Thorvaldur Gylfason, From Collapse to Constitution: The Case of Iceland , inPublic Debt, Global Governance and Economic Dynamism 379 (Luigi Paganetto ed., 2013). In addition, in Belgium, a number of academics organized a project involving reform discussions by 1,000 ordinary citizens. ( See G1000, Platform for Democratic Innovation , available athttp://www.g1000.org/en/ ). Romania also had a Constitutional Forum in 2013 that involved ordinary citizens alongside experts and civil society groups. Its role was to solicit reform proposals rather than decide on specific issues and it encountered difficulties once elite support for the reform process fractured. See Sergiu Gherghina & Sergiu Miscoiu, The Legitimacy of Deliberation in the Romanian 2013 Reform, Paper delivered at the ECPR General Conference, Glasgow, Sept. 3–6, 2014.

4

See Ir. Convention on the Constitution, available athttps://www.constitution.ie/Convention.aspx .

5

The Electoral Reform Society is campaigning for a citizen-led convention using the specific example of the Irish “success” ( see Jess Garland, Come Together , Electoral Reform (Sept. 8, 2014), available athttp://www.electoral-reform.org.uk/blog/come-together ). The Labour Party has committed to some form of convention. See also Clodagh Harris, The UK Has Much to Learn from the Irish Constitutional Convention , LSE Blog (Oct. 16, 2014), available athttp://blogs.lse.ac.uk/politicsandpolicy/citizens-constitutions-and-legitimacy-lessons-from-the-irish-convention-on-the-constitution/; Alan Renwick, How to Design a Constitutional Convention for the UK . Open Democracy (Sept. 23, 2014), available athttps://www.opendemocracy.net/ourkingdom/alan-renwick/how-to-design-constitutional-convention-for-uk .

6

See, e.g ., Matthew Wall, Change We Can Believe In? Ireland’s Constitutional Convention Has Delivered , TheJournal.ie (July 23, 2013), available athttp://www.thejournal.ie/readme/column-change-we-can-believe-in-ireland%E2%80%99s-constitutional-convention-has-delivered-1003278-Jul2013/; David Farrell, The Irish Constitutional Convention Offers a Potential Route-Map for Renewing UK Democracy , Democratic Audit UK (Oct. 10, 2014), available athttp://www.democraticaudit.com/?p=8625; Jane Suiter, David Farrell, Clodagh Harris & Eoin O’Malley, People with Politicians: Innovations in Deliberative Democracy , Paper presented at ECPR General Conference, Sept. 3–6, 2014; Ivana Bacik, Can a Constitutional Convention Offer Real and Radical Change ?, LSE Blog ( Dec. 15, 2014), available athttp://blogs.lse.ac.uk/constitutionuk/2014/12/15/can-a-constitutional-convention-offer-real-and-radical-change/ .

7

David Farrell, for example, was Research Director of the Irish Constitutional Convention; Jane Suiter was Deputy Director, and Clodagh Harris and Eoin O’Malley (with them) were members of the Convention’s legal and academic group. Matthew Wall was involved in the campaign for a citizens’ assembly to be established. See, e.g., Path to Rebuilding Republic Should Start with Citizens’ Assembly , Irish Times (Nov. 26, 2010), http://www.irishtimes.com/opinion/path-to-rebuilding-republic-should-start-with-citizens-assembly-1.681962. Ivana Bacik was a Labour Party appointee to the Convention.

8

John Dryzek, Foundations and Frontiers of Deliberative Governance 16 (2010).

9

Ethan Leib & Christopher Elmendorf, Why Party Democrats Need Popular Democracy and Popular Democrats Need Parties , 100 Cal. L. Rev . 69, 79 (2012).

10

Dennis Pilon, Investigating Media as a Deliberative Space: Newspaper Opinions about Voting Systems in the 2007 Ontario Provincial Referendum , 3 Can. Pol. Sci. Rev. 1, 2 (2009).

11

Richard French, Second Thoughts on the First Citizens’ Assemblies , 13 Int’l Pub. Mgmt Rev. 61 (2012), discussing Designing Deliberative Democracy: The British Columbia Citizens’ Assembly (Mark E. Warren & Hilary Pearse, eds., 2008).

12

Other early experiments were held in Ontario and the Netherlands. For an overview of these three, seePatrick Fournier et al., When Citizens Decide: Lessons from Citizen Assemblies on Electoral Reform (2011).

13

Peter Mair, Ruling the Void: The Hollowing of Western Democracy (2009).

14

Colin Crouch, Post-Democracy (2004).

15

Amy Gutmann & Dennis Thompson, Why Deliberative Democracy?, at vii (2004).

16

Maija Setala, Kimmo Gronlund, & Kaisa Herne, Citizen Deliberation on Nuclear Power: A Comparison of Two Decision-Making Methods , 58 Pol. Stud . 688 (2010).

17

Jason Barabas, How Deliberation Affects Policy Opinons , 98 Am. Pol. Sci. Rev . 687 (2004).

18

Ron Levy, Breaking the Constitutional Deadlock: Lessons from Deliberative Experiments in Constitutional Change , 34 Melb. U. L. Rev . 805, 821 (2010).

19

Ida-Elisabeth Andersen & Birgit Jaeger, Scenario Workshops and Consensus Conferences: Towards More Democratic Decision-Making , 26 Sci. & Pub. Pol’y 331 (1999).

20

Deliberative Democracy (John Elster ed., 2005); Jason Barabas, How deliberation affects policy opinions 98 American Political Science Review 687 (2004); David Ryfe, Does Deliberative Democracy Work? , 8 Annual Rev. Pol. Sci . 49 (2005); Gerry Mackie, Does Democratic Deliberation Change Minds? , 5 Pol., Phil. & Econ . 279 (2006).

21

For a summary of some of these projects, seeJames Fishkin, When the People Speak: Deliberative Democracy & Public Consultation (2009)

22

Philip Pettit, On the People’s Terms: A Republican Theory and Model of Democracy 236 (2012).

23

Richard French , Second Thoughts on the First Citizens’ Assemblies , 13 Int’l Pub. Mgmt Rev. 61, 63 (2012).

24

James Fishkin, When the People Speak: Deliberative Democracy & Public Consultation 83 (2009). See alsoPettit, supra note 22, at 236, describing the British Columbia Citizens’ Assembly as “good evidence that the people as a whole would adopt that sort of initiative, under suitable information and deliberation.”

25

See, e.g ., Thomas Pogge, The Incoherence Between Rawls’s Theories of Justice , 72 Fordham L. Rev. 1739 (2004).

26

Dennis Thompson, Who Should Govern Who Governs? The Role of Citizens in Reforming the Electoral System , inDesigning Deliberative Democracy: The British Columbia Citizens Assembly 20 (Mark Warren & Hilary Pearse (eds), 2008).

27

Siobhan O’Sullivan, Amy Erbe Healy, & Michael J. Breen, Political Legitimacy in Ireland During Economic Crisis , 29 Ir. Pol. Stud. 547 (2014).

28

David Farrell, Eoin O’Malley, & Jane Suiter, Deliberative Democracy in Action Irish-Style: The 2011 “We the Citizens” Pilot Citizens Assembly , 28 Ir. Pol. Stud . 99 (2013).

29

The Irish Politics Forum: A PSAI blog for discussion of politics, policy and political reform, available atwww.politicalreform.ie .

30

Farrell et al., supra note 28, at 100.

31

Conor O’Mahony, This So-called Constitutional Convention is a Charade , Irish Times , June 7, 2012.

32

Fintan O’Toole, We Ourselves Are Fit to Make a New Republic , Irish Times , Sept. 11, 2012.

33

Reforming the Constitution , Editorial, Irish Times , Sept. 17, 2012.

34

Quoted in Patrick Smyth, Convention is a Toothless Piece of Consultation , Irish Times , Aug. 18, 2012. See also Noel Whelan, Constitutional Convention Will Have its Remit Severely Pruned , Irish Times , Feb. 25, 2012: “[It] is one part Oireachtas committee and two parts focus group with an advisory role only and which will, at least initially, deal with what are essentially insignificant constitutional provisions.”

35

Corway v. Independent Newspapers [1999] 4 IR 485.

36

O’Mahony, supra note 31.

37

Whelan, supra note 34.

38

Ronan McGreevy, Citizens in Convention Need “Strong Backing”: Warning Politicians Could Manipulate Proceedings , Irish Times , Nov. 3, 2012.

39

Eirukur Bergman, Reconstituting Iceland—Constitutional Reform Caught in a New Critical Order in the Wake of Crisis , Conference paper delivered at Political Legitimacy and the Paradox of Regulation, Leiden University, Jan. 24–25, 2013.

40

Hear Our Voices: Civil Society Charter for a Constitutional Convention, available athttp://hearourvoices.ie/ .

41

John O’Dowd, The Constitutional Convention: A Comment , inThe Irish Constitution: Perspectives and Prospects 483, 488–489 (Eoin Carolan ed., 2012).

42

David Landau, Constitution-making Gone Wrong , 64 Ala. L. Rev. 923 , 969 (2013).

43

Donncha O’Connell, Too Much Compromise in Planned Constitutional Convention , Irish Times , Aug. 13, 2012.

44

O’Toole, supra note 32.

45

B&A (Behaviour & Attitudes), Constitutional Convention—Members of the Public Recruitment Process , available athttps://www.constitution.ie/Documents/BehaviourAndAttitudes.pdf .

46

See, e.g ., Harry McGee, Citizens on Constitution Body to Have Anonymity , Irish Times , Nov. 15, 2012; The Faceless Sixty-six , Editorial, Irish Times , Nov. 16, 2012 (describing it as a “bizarre and unprecedented decision to turn it into an advertising focus group”); Fintan O’Toole, “Democratic Renewal” Beyond Parody , Irish Times , Nov. 20, 2012 (“the latest and most ludicrous twist in the Government’s ‘political reform’ programme”); Fionnan Sheahan, Concern as Couple and Set of Neighbours are “Randomly Selected” for Constitutional Body , Irish Independent , Feb. 16, 2013 (“it farcically intended to keep the members anonymous”).

47

Sheahan, supra note 46.

48

Cass Sunstein, Going to Extremes: How Like Minds Unite and Divide 142 (2009): “[A] system of deliberation is likely to work well if it includes diverse people—that is if it has a degree of diversity in terms of approaches, information and positions.”

49

Claude Klein & Andras Sajo, Constitution-Making: Process and Substance , inThe Oxford Handbook of Comparative Constitutional Law 419, 435 (Michel Rosenfeld & Andras Sajo eds., 2012).

50

Stewart Clegg, Frameworks of Power (1989).

51

As anecdotal evidence (and a declaration of interest) the author was invited by group email to attend an initial meeting of prospective experts but had to decline the invitation. This was due to other commitments rather than any objection in principle—as I indicated to the organizers—I am (and remain) interested in the potential for mini-publics to make some contribution to democratic or constitutional discourse.

52

Farrell et al., supra note 28, 109.

53

Resolution of the Houses of the Oireachtas of July 2012.

54

Although this would, of course, raise issues about the representative character of the submissions received.

55

Which would focus attention on issues such as the appointment of experts.

56

Mark Tushnet, Constitution-making: An Introduction , 91 Tex. L. Rev . 1983, 1999 (2013).

57

For a more detailed discussion of the use of technology in a constitutional reform process, see Silvia Suteu, Constitutional Conventions in the Digital Era: Lessons from Iceland and Ireland , Paper presented to University College Dublin Constitutional Studies Group, Sept. 6, 2014.

58

Ruadhan Mac Cormaic, Convention May Consider Extra Topics, Says Chairman , Irish Times , Apr. 12, 2013.

59

Sinnott v. Minister for Education [2001] 2 IR 545; T.D. v. Minister for Education [2001] 4 IR 259.

60

Eoin Carolan, The Legitimacy of Public Service Reform: Democracy, Accountability and Experimentalism in the Big Society , Pub . L. 240, 256 [2013].

61

Dryzek, supra note 8, at 40.

62

For a summary, see Aoife Barry, Explainer: What is the 8th Amendment? , TheJournal.ie , Aug. 18, 2014, available athttp://www.thejournal.ie/what-is-the-eight-amendment-abortion-1625596-Aug2014/ .

63

Bruce Ackerman, We the People, Volume 1: Foundations (1993).

64

Citizens Have Shown They Are Not Afraid to Row Against Convention , Editorial, Irish Times , June 10, 2013.

65

A legitimate question can be raised about the extent to which a constitution-making forum ought to take place in public, for which see, for example, Jon Elster, Forces and Mechanisms in the Constitution-Making Process , 45 Duke L.J. 364 (1995). The point being made here is that the Convention purported to operate a fully transparent system.

66

This compared poorly to the very comprehensive process operated in the British Columbia assembly, under which members received reading materials for a first “learning phase”, received submissions via a website and public meetings in a second “public hearings” phase, and held small group and plenary discussions during a final “deliberations” phase. See the British Columbia Citizens’ Assembly on Electoral Reform’s final report, Making Every Vote Count: The Case for Electoral Reform in British Columbia (2004).

67

David Landau, Constitution-making Gone Wrong , 64 Ala. L. Rev . 923, 959 (2013).