One of the side deals done in the attempts to form a government was the idea to send the issue of the 8th amendment to the Constitution to a citizens’ assembly. Convening a convention is a good and practical idea, because it takes issues that politicians can’t agree on off the table. Any suitable issues in the negotiations to the programme for government that couldn’t be agreed will be sent to a citizens’ assembly.
The Constitutional Convention has been much hyped, particularly by those directly involved, as a positive democratic innovation. Normally such reviews of the constitution involve academic experts and elder statesmen. This one involved 100 people, 66 randomly chosen from the population, 33 representatives from parties and a government-appointed chairman. The mechanism through which it was to work was meant to be by deliberation, currently fashionable among democratic theorists. By using deliberative mini-publics or citizen juries it derives a special form of legitimacy that according to one proponent, James Fishkin, delivers a representation based on political equality. It’s what we would choose if we gave each issue the time, evidence, reason and respect they deserved where no special interests were prioritised.
The idea sounds laudable, and for many involved in the Constitutional Convention the experience of deliberation was a positive one. But we should remember that the decision in 2011 to create one was political expediency, to defer a decision on issues the parties agreeing a programme for government could not agree. This is again the case in 2016 as divided opinion within Fine Gael make it expedient to send the much more divisive issue of abortion to a Constitutional Convention. It is a practical way to insulate the parties.
It also appears to give legitimacy to the subsequent referendum.
Quite why gathering randomly chosen people and asking them to discuss something for a weekend is perceived as more legitimate than asking our elected representatives to make that decision is moot. It says more about the low esteem in which party politics is held than it does of the process of the Constitutional Convention.
The actual process used by the Irish Constitutional Convention was often flawed, and the idea that deliberative mini-public make some objectively ‘good’ decision is unsound.
It is of course impossible to say what the ‘right’ answer is for an issue such as abortion. Reasonable people starting with different, and largely untestable, beliefs will come to different conclusions. We cannot deny the right of the other to hold these beliefs.
Even in the much less controversial area such as what is the best electoral system, reasonable people can disagree. The ‘best’ system depends on what your priorities are. And even if we agree on priorities we cannot be certain how an electoral system will work in practice. They aren’t as predictable as planetary movements. If the ‘right’ answer is not something we can reliably judge on the basis of outcome, we depend on its democratic and procedural legitimacy.
Deliberative mini-publics are thought superior because a representative sample of the population considers arguments in a reasoned way. If representative democracy (electing a parliament) does not allow citizens to decide on issues, and direct democracy (referendums) asks citizens to decide without proper consideration, deliberative mini-publics asks a small number of citizens to consider an issue, the arguments and evidence in some detail The claim that deliberative mini-publics choose what the rest of us would if we were to think about the issue properly is empirically uncertain. Some research shows that the act of deliberating with others has an impact beyond exposure to arguments or evidence. That is people given the evidence and arguments don’t move as much as those who are asked to discuss that evidence and arguments with others.
This sounds like something positive for deliberative mini-publics. But it might not be.
Usually we ask more than just one person to make decisions because we assume that a large number of people coming to the same conclusion are more likely to be right. That’s the logic behind juries. If 12 people independently think you’re guilty, the likelihood that you’re actually guilty is high. But independence is key. A problem with juries, including citizens’ juries such as constitutional conventions, is that the logic assumes that the people form their opinion independently whereas they actually collaborate to come to conclusions.
Because they are not independent the same flawed thinking or arguments can be magnified. For instance we could see the citizens in the mini-publics engage in groupthink. Some opinions might be aired, but can be effectively suppressed by the atmosphere in the room. There is significant evidence in social psychology that groups can push opinion to extremes and silence minority opinion. To prevent this great care has to be taken that all views are respected.
While the Irish Constitutional Convention tried to ensure that deliberation was respectful, open and comprehensive, it wasn’t always possible. The financial and time constraints meant that far less time was given to issues than should have been. The Convention was chaired by Tom Arnold, a charming and remarkably well-connected political insider. He ensured the Convention was well-managed and didn’t produce any politically challenging decisions. Even reasonable issues and objections were closed down in order to keep within time restrictions.
For example on the issue of marriage equality a minority conceded that they had lost the argument on this but were concerned that a redefinition in the constitution might oblige teachers and religious schools to teach any new constitutional definition and not the one they believed in. They requested a vote on a motion that would state that the Convention wished to respect dissenters’ objections and protect them from state sanction. The issue was closed down without debate in a manner that appeared to me utterly at odds with the supposed spirit of the exercise.
I don’t think anyone involved intentionally tried to manipulate the process, but it was clear that most of us had clear views as to what we considered the ‘right’ outcome. It would have been easy for the chair or his team to manipulate the outcome. This would have in first instance been possible by choosing the ‘right’ wording to the questions put to the Convention. Practical considerations and the need for timely outcomes meant there wasn’t time for ‘talks about talks’; we just had to get on with it, giving the agenda setters greater power.
The choice of experts was highly significant. In an earlier experiment I did with others we found that when experts agreed the members of a citizens’ jury tended to follow the expert judgement. While we did not deliberately set out to produce a result, the fact that our experts all agreed with the retention of the Irish electoral system meant there was less debate on its potential flaws than there should have been.
Another problem is that the 66 so-called ‘citizen members’ were not randomly chosen. Aside from the problem in identifying ‘random’ citizens, anyone who agreed to spend multiple weekends discussing sometimes arcane constitutional provisions had to be unusually interested in politics. There was a strong self-selection bias driving the composition of the Convention, and they may not have had representative views. Practical matters also got in the way. Few (if any) mothers of young children were there presumably because of the onerous time impositions.
If the members are not representative, it is questionable what claims to legitimacy the Convention can have. The unwillingness to use the representative institutions of the state is unfortunate; it further feeds the sense of distrust in those institutions. It’s unfortunate also because I suspect the Oireachtas committee’s discussion on legislating for the X judgement was far more comprehensive than a Constitutional Convention’s could ever have been.
Too many of those involved in the Convention act as uncritical cheerleaders of the process. With any new convention we should consider its flaws as well.
First published in Village Magazine May, 2016.
Irish Politics Forum 
Unfortunately this article could be dated as 1816 rather than 2016. It’s a complete resistance to embrace ‘new politics’. I am not referring to the current ‘minority Government’ who didn’t receive the support of majority and therefore cannot possibly be considered a democracy, I am referring to the continuous denial that the new politics people are wanting is citizen led politics. Greater citizen participation in the decision-making is the only way forward. Deliberation, participation, call it what you like… I call it democracy.
It’s terrible to watch someone whose view of the world of politics is stuck in a couple of centuries ago, clutch to the inevitable death of this ‘so-called’ representative democracy. He even tries to support his argument by trying to slate justice through juries! Perhaps this ‘commentator’ would prefer to remove people from juries completely and leave the decision making up to the political appointed judges – those guys who will be appointed by an undemocratic Government? Sigh..
It’s not what the article is saying. It’s saying that the Assemblies are not what they are purported to be. If you pretend to be so watchful about the fate of our democracy, then beware of democratic whitewashing. Using Assemblies and “citizens’ Councils” is an increasingly popular trick among Western technocrats in want of legitimacy. How do you get citizen councils to say what you want them to say?
– First mark out the red lines, so that they don’t ever reform the most important.
– Second, during the discussion, use partisan peers in the council to garner citizens to your side, to keep discussion on your “right” track, and possibly belittle your most effective opponents.
– Third, in the case of a massive revolt, just pretend the councilmen and women have been bribed.
The Soviets did that. Today’s technocrats do that. It’s a story of human weakness. The 2011 Convention saw at least the first two steps – there were topics to discuss, and there was admixture from professional politicians. Guess what will happen next time.
So in short, always be cynical about what is painted the color of “democracy” and judge only by the process itself.
Why do people always see problems instead of solutions? Firstly, I’m not defending the 2011 Convention. I am pointing out that people love to throw the baby out with the bath water and it’s either due to lack of innovative thinking or they purposely want to shoot down anything that could be a starting point to bring about change. Here’s a thought. Let’s start by using our imagination. Imagine that the political system is completely broken and Irelands future depends on implementing a citizens assembly. Imagine all our lives depended on it. Where there is a will, there is a way.
What if the citizens were selected randomly? What if there were no ‘red-lines’? What if the assembly was given only one objective – identify / agree a solution to a specific problem? What if the assembly could call upon anyone (both national and international) to contribute and provide ‘advice/expertise’? What if voting at the assembly was secret ballot to help ensure people don’t go with the flow? Again, what if we stop looking at the problems and focus on solutions.
Why do people always see problems instead of solutions? Firstly, I’m not defending the 2011 Convention. I am pointing out that people love to throw the baby out with the bath water and it’s either due to lack of innovative thinking or they purposely want to shoot down anything that could be a starting point to bring about change. Here’s a thought. Let’s start by using our imagination. Imagine that the political system is completely broken and Irelands future depends on implementing a citizens assembly. Imagine all our lives depended on it. Where there is a will, there is a way.
What if the citizens were selected randomly? What if there were no ‘red-lines’? What if the assembly was given only one objective – identify / agree a solution to a specific problem? What if the assembly could call upon anyone (both national and international) to contribute and provide ‘advice/expertise’? What if voting at the assembly was secret ballot to help ensure people don’t go with the flow? Again, what if we stop looking at the problems and focus on solutions.
Correct. It was not a representative assembly and some of the ideas emanating therefrom were silly. The fact is that it was more likely that a Dublin-dwelling Irish Times reader would agree to it than the average citizen who might have duties to their family on a Saturday. It was useful as political cover to do things without the usual suspects moaning about the referendum being an imposition by the elites, the argument that won the Seanad referendum.
This article makes many reasonable points (though I wouldn’t agree with everything). In the justice system, juries, while not perfect, generally have worked reasonably well over the decades (and centuries). They are about the only truly non-political cog in our criminal-justice machine. The question put to a jury is a simple clear-cut one: guilt or innocence. One would generally expect, at least in criminal cases, the teams and resources on both sides to be adequately resourced and not too mismatched (and both genuinely wanting to win). A limited amount of screening of potential jury members does happen (both teams have a certain number of refusals), and, though it’s not really supposed to happen, there’s a degree of people wriggling out of jury service. Hence, there’s probably a minor degree of skew in their representativeness.
However, I’d have far more concerns about representativeness in constitutional conventions. The recent one, as far as I’m aware, had a 40:1 refusal ratio. While pollsters can impose coarse age, socio-economic, regional and other demographic rebalancing criteria, to restore a type of representativeness to the sample, there has to be a strong underlying (poorly understood) self-selection bias in operation. The one person in forty who signs up to giving up several weekends over a year discussing slightly arcane political topics is very likely to be atypical in several respects (despite ticking some broad demographic boxes). It seems that several ordinary members of the last convention had current or past political party involvement. That would be unlikely in a truly random sample. However, it’s unsurprisingly given the 40 to 1 rejection rate.
Pollsters generally don’t work in a truly random fashion anyway, e.g. there was a husband and wife pair (also IIRC two close neighbours) amongst the ordinary members of the convention (I’d assume there due to the harried efforts of some polling employee under a tight deadline trying to meet a quota). That’s the slightly sloppy kind of methodology that is just grist to the mill for the conspiracy theorists! 🙂
Whatever about the rather less contentious (and somewhat political anorak-y) topics of the last convention, I’d fear the same polling methodology will be wholly inadequate for a convention whose number one topic of discussion is abortion. I’d feel that a genuinely random and representative sample of the electorate could actually usefully deliberate on this tricky issue. That’s not likely what we’ll get though! We’ll get the 1 in 40 of the population who are most passionate about this issue and are willing to drop everything to spend a weekend or two shaping policy, the small percentage of the population whose minds are already made up one way or the other (won’t matter what any of the experts say either way). Compromise proposals are unlikely to be adopted (repealing the eight amendment within certain term limits or for various possible limited exceptions like fatal foetal abnormalities or rape etc.). The impossible-to-predict relative preponderance of hard “keep the eight” to hard “repeal the eight” individuals encountered by the polling company, will most likely be what pre-determines the ultimate outcome.
One could counter all this, I suppose, by simply asking potential members beforehand their views (and how deep-seated they are) on abortion, and then try to pick the members chosen to match the range of opinions found in the general population. Could we trust potential candidates would even answer such questions honestly? Also, it would seem paradoxical to be pre-screening the opinions of those whose job is to form policy on an issue. If it became known that this happened it would remove any of the convention’s legitimacy. Rightly or wrongly, it would just seem like an attempt to pre-determine the outcome.
IMO using a constitutional convention as a medium to determine policy on a contentious and divisive topic like abortion is fraught with (probably insurmountable) methodological difficulties.
Don’t know why no one involved with constitutional convention will not take responsibility to clear this up before Citizens Assembly, the issue of how random it was and whether people were selected randomly and strictly correctly in every case. Only heard this recently how a constitutional convention member said on radio that she got selected because a friend who had done surveys on her before asked her… at 24ms https://www.rte.ie/radio1/liveline/programmes/2013/0219/368568-tuesday-19th-february-2013/?clipid=1003529#1003529 how is that random? she may have known her opinion on social issues having surveyed her on numerous occasions before. (the husband and wife pair weren’t husband and wife, just a couple btw )
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