A Constitution of the People and How to Achieve It

The example of Bosnia is of immediate significance to the British constitution. The constitution of the former provides a cautionary lesson that written codification, federalisation and entrenchment of some rules above others cannot be, in and of itself, a panacea. This book considers whether the lesson from Bosnia is that misunderstanding political culture, ignoring the preferences of people in all their manifestations, and imposing rather than agreeing constitutional arrangements will simply lead to failed institutions and instability.

There is no doubt that dissatisfaction exists in Britain. Dissatisfaction is prevalent among the devolved powers, among the regions, among the haves and have-nots, in the quality of political elites, and in the manner in which political elites carry out their duties and how they are elected (or not, as in the case of the House of Lords—Parliament’s upper chamber). There is a clear need for something other than the status quo to address constitutional issues in Britain outside the day-to-day of parliamentary politics. The classic British fudge, muddling through with partisan, ad hoc, changes to its constitution are not sustainable. The underlying constitutional issues have precipitated many crises and have resulted in attacks on judges by the media and the executive. The executive has failed to understand the significance of fundamental unwritten rules and practices and the consequences of attacking them for short-term political gain. With a rise of nationalism, different political parties, have precipitated centrifugal and centripetal forces which wrestle with secession from the Union, or, on the contrary, further centralisation. Meanwhile, there are calls for a reassertion of nativism, originalist or ‘orthodox’ (depending on your view) interpretations of people’s fundamental rights. These calls compete against international norms that Britain is bound faithfully to interpret, apply and fulfil either by treaty or custom.

This book demonstrates that, when it comes to constitutional issues, there is a significant discrepancy between the preferences of the elites and those of the people in both Britain and Bosnia.

In Bosnia, constitutional structures, when combined with the legacy of the war, have tended to favour the election of ethno-nationalist elites. The Bosnian constitution, and by extension its institutions, is the most significant impediment to the bridging of societal divides. Its reform, therefore, must be the priority. But such reform must have a popular mandate. Elites, isolated from the people,20 are unable and/or unwilling to undertake reform that is conciliatory, moderate and accommodating. These elites are seemingly locked in revolving doors without an exit. Using adaptations from game theory (mechanism design and implementation theory) and behavioural economics (prospect theory) a ‘revolving constitution’ is proposed to break the impasse. A revolving constitution would subject parts of the constitution—as opposed to ordinary legislation—to greater civic participation and input (through, referendums, civic initiatives and deliberative assemblies) on a fixed basis every new generation.21 Fixed and repeated interaction between elites and the people would introduce a flexibility and democratic legitimacy into political life that is currently lacking these characteristics. A widely agreed constitutional covenant would ensure such a process would be transparent, properly institutionalised, and contain procedural safeguards. These safeguards would ensure no one is cut out of the process or that current arrangements are not simply torn-up by one group. This can be achieved with: rules requiring joint and concurrent referendums in all significant entities, municipalities and cantons; civic initiatives that cut across ethnic lines; and inclusive constitutional conventions for deliberation. With these safeguards, it is clear that the people and elites would be no worse off than under the status quo; even if the people might be as intransigent as elites. A revolving constitution would guarantee that the outcomes of reform would accord with the median or average voter. Elites in the constitutional reform space, currently interacting only with each other in the parliamentary or presidential arena, would be incentivised or ‘nudged’ towards considering the preferences of the people in the electoral arena.22 If the people are just as intransigent as the elites then current constitutional arrangements will remain in place. If it is true, however, as the evidence suggests, that the people are more accommodating than political elites then regular interaction between elites and the people can lead to far greater constitutional change than is currently possible and a far greater likelihood of accommodating behaviour amongst elites. The revolving constitution can help publicly manifest the underlying political culture of the people: democratic, tolerant and accepting.

The revolving constitution is far from being a revolutionary construct. It does not, like revolutions in general, impose a winner takes all solution by immediately empowering or disempowering one group over another in the political game. Repeated interaction and engagement by the people and elites in the constitutional reform arena would tend to speed-up constitutional evolution, recreating a process that allows flexibility to be established in polities like Britain. If it is right that the people are more conciliatory and accepting than political elites (as this book demonstrates they are) then this evolution will stand in bold defiance of exclusive ethno-nationalism. The possibility of regularly (though not too frequently) amending the constitution, with civic involvement, would set in motion a process rather than determine an outcome. A process whereby political elites are incentivised to pursue moderate and accommodating reform could, incrementally, alter the shape of everyday politics in Bosnia. A standard may even be set for other plural, multi-ethnic polities to follow—both to help regulate existing conflict and avert conflict in the future.

In Britain, it is evident that piecemeal and partisan constitutional changes and the use of modes of decision making that are outside the accepted rules and norms has had a corrosive effect on the institutions of parliamentary democracy. Parliamentary democracy is predicated on representative institutions rather than institutions of direct democracy. It is evident that there is a need for inclusive, participatory and deliberative processes to reform aspects of the British constitution so that a fairer settlement can be achieved to address disparities in: wealth and regional equality; the equality of the four nations; the application of human rights and the international norms thereof; and the representation of the people in Parliament. There is a strong case for a constitutional covenant to begin a process: to inform the electorate and elites, to understand the significance of reform and where it might be really needed through consultation; and, ultimately to open an informed national debate and deliberation—among political elites and the people—in order to form a cross-party consensus as to which aspects of Britain’s unwritten constitution are fundamental. This might include the production of an impartial code or guide to the current arrangements to facilitate understanding and debate (HoC 2014). The process towards a covenant is not utopian in nature but rather a practical mechanism: the people can be nudged into this process given the preferences they have expressed in favour of more involvement, participation and a need for a change from the status quo.

The Bosnian experience shows that there are some principles which must be at the forefront of any constitutional reform endeavour in Britain. The process of any reform proposal is all critical. Measuring political culture is as important as carrying out polls on the day-to-day issues that concern the electorate. This enables a better understanding of where the electorate stands on the fundamentals of democracy, participation and the idea of living together. Public participation in the process must be provided for and ought to be genuine and meaningful to help nurture, consolidate, and develop good political culture. And, finally, pragmatic buy-in of political elites is necessary to avoid spoilers and to avoid scenarios where it is perceived that at the end of the process the winner will take all. With some of these principles it may well be possible to consider whether the British people, across all four nations and in all their diversity, may come to new political understanding, perhaps towards a kind of Magna Carta of the People, around which political elites, stakeholders and the people may coalesce.23 There will be no shortage of questions requiring answers, for example:

 How do you accommodate different national interests in a union of nations without descending into a nationalist “race to the bottom”?

 How should constitutions deal with veto rights on decisions by national or minority communities?

 What are the risks of entrenching some rights above others, in particular, the rights of whole groups or nations?

 What are the pitfalls of using referenda in a blunt manner (as was done in the referendum to leave the EU) and what might be more ‘sensible’ ways of ascertaining people’s preferences?

 Why is constitutional change without considering the preferences of the people doomed to fail?

 

 Should political culture (both civic and political values) be given equal, if not more, attention as proposals for reform of constitutional rules?

This book aims to provide those answers and an opportunity to re-evaluate Britain’s current uncodified constitution. In doing so, it provides some insight as to a possible transparent, inclusive, participatory pathway around current impediments. It posits a recurring but controversial question: is Britain’s historical unwritten arrangement really worth defending? Any such defence, if it is to occur, would be made through a re-development of core political and civic virtues through greater political interaction between political elites and the people. Reliance simply on written rules, duties and responsibilities is not enough. Some form of social entrenchment of human rights (if not legal and political) is clearly necessary to allow the unrestricted cultivation of good political culture. Game theory and behavioural economics suggest that, where the conditions are right, the British model, with certain adaptations, could be favourable to better constitution-making. The British model may make less confrontational a process by avoiding any ‘constitutional moment’. It allows, not unlike a ‘revolving constitution’, inter-temporal bargains to lessen the ‘winner-takes-all’ effects of a new or amended constitution. It also encourages an active constitutional culture to develop across generations so that new generations may feel that they have something at stake and a genuine solidarity and fraternity with others who decide the new rules.

Britain though may need a way to reset the terms of its political arrangement. A one-off constitutional covenant leading to a constitutional convention to deliberate on key constitutional problems may provide a truly participatory and deliberative constitutional statute to renew, reinvigorate and revitalise political relationships. Such a constitutional statute could ensure that Parliament, the Government as well as the devolved administrations benefit from greater popular legitimacy rather than suffer collective malaise, disdain and apathy.

The book is organised as follows. Chapter 1 provides an overview of what a constitution is and the debate that surrounds its nature. An outline is provided of the British unwritten or uncodified constitution: its operation, its historical origins, and the recent trends challenging its unwritten status. The Chapter also provides an outline of the Bosnian constitution: its creation, the hopes of its drafters, its imposition, and the practical reality of its operation. It explains why comparing these two particular States is important and what we might hope to gain by questioning their design and amendment processes. It emphasises that no particular constitution is paradigmatic. An unwritten one is not necessarily superior to a written one. The process of creation or change, however, necessarily entails a consideration of political culture and history.

Chapter 2 introduces theoretical ideas about political culture, what it is and how it can be measured. It explains falls in political participation in Bosnia and Britain and the variables that can help explain why people are (or can become) apathetic in a given constitutional structure. In particular, the Chapter looks at how people form views that are not conducive to democratic engagement, as well as views that are hostile to a democratic form of government. The sub-chapters define concepts such as ‘political culture’, ‘political apathy’, ‘political participation’, and proposes a working model for analysis. The Chapter presents the findings of quantitative research (see Appendix A) in respect of political apathy in Britain and Bosnia, with Croatia as a reference point.

Chapter 3 presents the detailed findings of quantitative research in respect of political culture in Bosnia. The Chapter, in particular, considers whether a ‘poor’ political culture (defined in Chapter 2) is the main variable explaining Bosnia’s political problems or whether there are more persuasive explanations such as institutional failure stemming from foundational constitutional structures. The Chapter roots the questions of constitutional design and amendment in the context of the real political culture of the Bosnian people and sets out why the failure to consider this culture may be helping to perpetuate conflict and simply freeze violent conflict. If Britain and Bosnia have pro-democratic political cultures, the question is posed as to what they may learn from one another in terms of their design and amendment processes.

Chapter 4 sets out the literature and theoretical principles of institutional design and amendment. It explains why changing formal rules when the underlying beliefs or values of societies remain rigidly opposed will result in failed institutions; and why a failure to change the formal institutions when belief systems are conducive to change imperils those institutions. The sub-chapters set out the three major proposals that have been made to date to reform the Bosnian constitution and the reasons for their failure. The sub-chapters will contrast that experience with the outlier case of the unwritten constitution in Britain and various reforms made to it (with a focus on those made since 1997). The sub-chapters focus on Brexit, Scottish and Northern Irish secessionism, and the unlawful constitutional practices of recent British governments. They interrogate whether it is the existing unwritten constitution (which creates a system of representative parliamentary democracy) that is the source of these crises or, rather, the by-passing of existing constitutional conventions, rules, and institutions. In the one (Britain) it poses the question of whether abandonment of its traditional unwritten constitution is the problem and in the other (Bosnia) it asks whether the foundational moment of the imposed constitution is the source of all the problems. In essence, what can one State learn from the other as calls for reform ring loud?

Chapter 5 draws on the literature in the fields of game theory and behavioural economics to model the impasse in Bosnia in light of the practical operation of Britain’s flexible constitutional arrangements. It uses game theory to present how ethno-nationalist political elites play a ‘zero-sum’ game in the current Bosnian institutions. Suggestions are made as to how they may be incentivised to give-up their strong ethno-nationalistic decision-making in the current system by introducing a third and critical actor: the people. The Chapter then suggests a solution to the impasse in Bosnia: a revolving constitution.

Chapter 6 develops the practical lessons for two disparate constitutional reform debates—that in Britain where codification is being increasingly talked about, and that in Bosnia where any hope of reform is marred by the actions of ethno-nationalist elite spoilers who benefit greatly from the current constitutional status quo. The Chapter sets out the mechanics of how a revolving constitution for Bosnia might operate and the careful calibration that is required to ensure safeguards for minority groups, human rights and stability. The Chapter also looks at how Britain may address current and future constitutional crises that clearly require redress. A model for greater deliberation and participation of the public is proposed which is in true keeping with British political culture and tradition.

The concluding remarks suggest how best to characterise a constitution and draws together the wide scholarship consulted in writing this book. The remarks identify the main lessons learned in comparing Bosnian and British constitution-making and design; some practical policy suggestions are provided on possible reform of the British and Bosnian constitutions. General lessons are drawn from the comparison made between Bosnia and Britain for both post-conflict and pre-conflict States.

Technical Methodology

This book makes use of two research methods to answer the primary research questions: (a) quantitative research to understand political culture, political apathy and political division in Bosnia and Britain; and (b) the use of rational choice models (game theory and veto player theory) and behavioural economics (prospect theory) to analyse the behaviour of political elites and the people (together ‘players’) in the current constitutional framework.

The quantitative analysis uses value-based surveys produced by the World Values Survey (WVS) and European Values Study (EVS) to make operational the terms ‘political culture’, ‘political participation’ and ‘political apathy’. Croatia is used as a comparative case study.24 The dataset produced by WVS and EVS conducted seven waves of studies with four each of Bosnia, Croatia and Britain in the period from 1990—2020 (Bosnia 1998 (N=800), 2001 (N=1200), 2008 (N=1512), 2019 (N=1735), Croatia (1996 (N=1196), 1999 (N=1003), 2008 (N=1525), 2017 (N=1493) and Britain (1990 (N=1484), 1999 (N= 994), 2008 (N=1561), 2018 (N=1794).25 WVS and EVS are used as they are the only dataset that collated time-series data cross-nationally on issues concerning political participation over a significant period of time. Given the lack of any other serious time-series data, and gaps in the datasets which exist, the analysis is supplemented by data obtained from other local studies where available and relevant.

The quantitative analysis forms the basis for the rest of the study. The quantitative data together with the case study on Bosnia’s institutional failure (Chapter 4) is necessary to form some of the assumptions about players’ substantive preferences and institutional structures in the rational choice analysis that follows (Chapter 5). These assumptions give empirical content to the theory and hence make it testable (Ganghof 2009). Rational choice models have explanatory power and predictive potential: in Bosnia they serve to elucidate why substantive proposals for constitutional reform are failing and suggest possible ways to break the reform impasse. The Bosnian case study allows a clearer comparison with constitutional reforms suggested for Britain. The game theory approach helps to explain complex political behaviour in a systematic way; why the behaviour of political actors is an optimal response to conditions of their political environment and the behaviour of others. Changing the context or institutions (the ‘rules of the game’) leads to changes in preferences and, therefore, outcomes. The models, therefore, provide theoretical clarity and strong explanatory power by eliminating chance or ad hoc explanations whilst acknowledging that the model is only an approximation of reality although a relatively good approximation (Tsebelis 1990, 40-47). They also explain why certain conditions and behaviour prevail, as equilibria, in a State such as Bosnia. The veto player approach, in particular, can integrate a number of approaches to institutional analyses by focusing on actors within institutions that actually matter—those that can set, alter and veto legislation (Tsebelis 1999; 2002; Ganghof 2009; Hallerberg 2010, 21).

The game theory and veto player approaches are used to model the game played by the elites in the parliamentary arena in Bosnia. The preferences of elites, however, are influenced in another important space: the electoral arena where interaction with the people (or the electorate) can alter preferences and, therefore, outcomes. The objective of the study is not to discuss the shortcomings and benefits of various institutional structures generally for Bosnia but to compare all of these structures consistently with respect to one particular objective (Tsebelis 1995): the capacity for meaningful constitutional change.

Given that the use of such models has been neglected in the study of Bosnia’s political paralysis, this book aims to add to existing work by identifying the precise causes of failure in the institutional structures in Bosnia inhibiting meaningful constitutional reform and civic participation in politics. That would go some way to creating a Bosnia based on individual rights and equality rather than the presumed collective equality of ethnic groups. For Britain, this book seeks to draw together disparate thinking on suggestions for constitutional reform and attempts to reconcile competing models. The analytical models deployed allow a pathway out of constitutional paralysis, contestation and crises. Practical proposals are provided as to how States can enjoy higher civic participation in politics, fairer bargains between groups and increased democratic legitimacy. Britain and Bosnia may benefit, but so might others. ۞

—Mak Dizdar, The Stone Sleeper 26

1 An extract of a poem called “BBBB” by Mak Dizdar [1917-1971] (2009, 50).

2 These, possibly apocryphal, remarks were widely reported to have been made by the Queen at a lecture being delivered by Prof. Peter Hennessy at Queen Mary College, London. See further, Hennessy’s (1995) own account of the event. Bogdanor (2009) gives an account of another incident. The Queen attended an event at University College London where she came upon a book called The Changing Constitution, edited by Prof. Jeffrey Jowell. She reportedly said to Jowell, who was standing nearby, “Changing, Professor Jowell, what changes? I haven't noticed any changes!” Jowell replied, “Well, evolving, Ma’am, evolving.” She responded, “Yes, but in what direction?”

3 Bosnia and Herzegovina is referred to throughout as “Bosnia”.

4 The State constitution was agreed as Annex IV of the General Framework Agreement for Peace in Bosnia and Herzegovina, initialled at Dayton on 21 November 1995 and signed in Paris on 14 December 1995. It is referred to throughout as the “Bosnian constitution”.

5 Richard Holbrooke, the principal negotiator of the Agreement, maintains that “on paper, Dayton was a good agreement; it ended the war and established a single, multi-ethnic country.” His caveat is that “the results of the international effort to implement Dayton would determine its true place in history.”

6 There is also the self-governing district of Brčko in the North of Bosnia which is under international supervision.

7 There have been three substantial reform processes since 2005 all of which have failed as a result of intransigent, ethno-nationalist positions taken by the elected representatives. There have also been two missives for reform that are very significant. These are all addressed in Chapter 4.

8 The constitution contravenes international law in a number of ways. For instance, only members of the three main ethnic groups are allowed to run for the office of president; members of the country's many minorities, such as Roma and Jews, are excluded as candidates. Also, individual rights are subservient to ethno-national group rights which permit vetoes, quotas, and exclusive ethno-national representation to the elected representatives of the groups.

9 Approximately 613.22 million USD in 2019 (PIC 2020).

10 The comparison between Bosnia and Britain is not straightforward as the accounting for the cost of government administration is different in the two countries. The figure for Britain is a composite of the following: costs of government administration for the state at 10.1 billion USD, 2019 (HM Treasury 2019); cost of running both Houses of Parliament at 766.25 million USD, 2019 (IfG 2020); cost of the running the central government estate at 3.56 billion USD, 2018 (Cabinet Office 2018); total budgetary receipts 1,054.21 billion USD (OBR 2020). The UK GDP for 2019 was 2,829.10 billion USD (World Bank 2020).

11 This issue is touched upon in Chapter 1 and further elaborated upon in Chapters 3 and 4.

12 This claim in no way relates to policy issues and the very severe crises that emanated over the past 350 years. It also does not discount the violations of rights by the British state, whether domestic or international.

13 The common law, however, does provide that certain statutes that are deemed, by the courts, to have constitutional significance may only be repealed, amended or abrogated if done so expressly by Parliament. This is further discussed in Chapters 4 and 6.

14 This is notwithstanding the fact that it was Conservative politicians who helped pioneer and draft the international instruments that protect fundamental rights including the European Convention on Human Rights (“ECHR”).

15 In leaving the European Union, British citizens lost a host of rights that have not been directly transposed into domestic law, the most significant of which were rights enshrined in the Charter on Fundamental Rights. In respect of the ECHR, it has been a Conservative Party Manifesto commitment, since 2010, to leave the ECHR.

16 See further Ackerman (1991, 1992). Constitution moments are understood to “emerge from an exceptional moment of higher-order law-making under the liberal constitutional paradigm” (Bali and Lerner 2016).

17 This is based on the case study of elite behaviour in the State institutions (Chapters 4 and 5) together with the quantitative analysis (Chapters 2 and 3) demonstrating the scope for accommodation amongst the population at large.

18 See the very cogently argued piece by Bonnie (2001, 801).

19 The incentive structures built into the peace agreement is, unsurprisingly, to the advantage of those negotiators (Bassuener 2020, 225).

20 On the issue of constitutional reform, at least, and arguably on almost all policy issues given the way the electoral laws and districts operate.

21 The term ‘deliberative’ has helpfully been defined by Ghai and Galli (2006) to mean “a process of negotiation which is based on clear goals (of the national interest and social justice) and sufficient information and knowledge, aimed at exchanges of ideas, clarification of differences, persuasion and agreement. This requires a degree of facilitation, and a critical question is who does this and under what procedures.”

22 The idea that political elite’s decision-making is in the name of ‘the people’ would no longer ring hollow and the people would find it more difficult to blame political elites alone for intransigence given that all the people will now have an opportunity to participate.

23 Another title may be the Millennium Magna Carta or the Charter of the People.