CORRECTED TRANSCRIPT OF ORAL EVIDENCE
To be published as HC 1178-i

House of commons

oral EVIDENCE

TAKEN BEFORE THE

Political and Constitutional Reform Committee

MAPPING THE PATH TO CODIFYING - OR NOT CODIFYING - THE UK’S CONSTITUTION

Thursday 7 July 2011

Sophie Boyron

Peter Bajomi-Lazar

Dr Bill Kissane

Evidence heard in Public Questions 1 - 60

USE OF THE TRANSCRIPT

1. This is a corrected transcript of evidence taken in public and reported to the House. The transcript has been placed on the internet on the authority of the Committee, and copies have been made available by the Vote Office for the use of Members and others.

2. The transcript is an approved formal record of these proceedings. It will be printed in due course.

Oral Evidence

Taken before the Political and Constitutional Reform Committee

on Thursday 7 July 2011

Members present:

Mr Graham Allen, in the Chair

Mr Christopher Chope

Sheila Gilmore

Andrew Griffiths

Mr Fabian Hamilton

Simon Hart

Tristram Hunt

Mr Andrew Turner

Stephen Williams

________________

Examination of Witness

Witness: Sophie Boyron, Senior Lecturer, University of Birmingham, gave evidence.

Q1 Chair: Hello, Sophie, and welcome. I am very pleased we have been able to make your birthday dream come true. We understood your wish was to appear before a Select Committee, so we are very pleased to oblige.

Sophie Boyron: Thank you very much.

Chair: You are so welcome, Sophie. You are among friends. We are keen to hear what you have to say on international comparisons of constitutional change, with particular emphasis on France. Would you like to give us a brief opening statement so that we will direct our questions to you after that?

Sophie Boyron: Thank you, Chairman. I am not sure what you know, if you know anything, about the relatively recent reform of the French constitution, which dates from July 2008, so I will give you a little quick background.

Chair: That would be helpful.

Sophie Boyron: First of all, it is a major constitutional reform because-to give you an idea of quantity-half the provisions of the constitutions were modified, so there are about 100 provisions and we modified about 48, I think, so that is quite major. Why did that happen? I think there were three reasons in terms of timeline; long term, short term and medium term. I will start with the long term. The French constitution has always been interpreted in the wrong way, in the sense that it was meant to be a parliamentary system but most of the time it was not applied as a parliamentary system. There were exceptions but we shifted, and it is mainly a presidential system, or a strongly presidential system. But because the constitution was written as a parliamentary system, it was always unbalanced, and it was felt that it needed to be rebalanced at some point. After 50 years of practice it was felt that it was high time to do so-that is the long term.

The medium term is that there already had been an attempt at doing so in the 1990s and it did not go anywhere. Well, it certainly did not achieve much. In the short term, in 2007 there was the presidential election where Sarkozy was elected. The presidential campaign was partly fought on constitutional reform, for two reasons. One, because it was felt that it needed to be rebalanced, the 50th anniversary of the constitution was coming up, and it was symbolic. It was time to do something about it. I think, maybe politically, another reason is that the presidential reading of the constitution had just been endorsed by the people in 2000 and it was felt that it was high time that the imbalance be addressed.

I think the other footnote, politically, is that it was also felt that a number of people, particularly young people, did not engage in politics enough and that they engage in the streets instead, although I regard that as French political practice rather than a problem. I can understand why people think it is a problem. However, they thought that by having constitutional reform, which made it more transparent, better, more democratic, and so on, that might help people re-engaging with politics. That is the background, quickly.

Chair: Very good. Thank you very much indeed. Fabian, do you want to kick us off?

Q2 Fabian Hamilton : Well, bon anniversaire, again.

Sophie Boyron: Merci beaucoup.

Fabian Hamilton : The Committee that drafted the changes-this Comité des Sages-how was that appointed?

Sophie Boyron: That was appointed by Monsieur Sarkozy.

Q3 Fabian Hamilton : There was no consultation with anybody else? He just decided the great and the good?

Sophie Boyron: Yes, more or less. Yes.

Q4 Fabian Hamilton : My understanding is that there was no referendum to approve the changes.

Sophie Boyron: You are perfectly right.

Q5 Fabian Hamilton : How did the public engage, and what was the public’s reaction? Was it a problem that there was no referendum, or did people simply accept that this committee of wise people were perfectly wise enough to do it on their own?

Sophie Boyron: Two things: we revise our constitution a lot, and only once have we had a proper referendum, in 2000. That was it. So that is not uncommon. What is uncommon and creates a problem, even for me, is that the spread and depth of the change you would have thought would have required popular support. What is even more worrying, because I was there at the time, is that there was very little engagement of the people. The little engagement that existed was on the wrong basis.

Q6 Fabian Hamilton : How on the wrong basis, can you explain that a bit?

Sophie Boyron: Maybe because there was not a referendum, there was not very much need to explain what was going on, okay, and that is an issue. As a result, the political parties that were against the reform did say things about the reform, which were not quite true. So, to be honest, if there had been a referendum the population would not have made their decision on the basis of, what I would call, "accurate information".

Q7 Fabian Hamilton : I am trying to think how the demand for the change came about. Obviously you mention Sarkozy made it part of his platform for election in 2007, but what else triggered this demand? Was there popular demand? Were the media saying, "It is about time we changed this or that aspect of the constitution"?

Sophie Boyron: I think it had been an ongoing issue for a long time. This is the reason why I tried to give you a timeline. I think it was an ongoing problem. You are perfectly right that Sarkozy made it his platform, but he was not the only one. The Socialists also made it their platform, and all the other parties basically had plans to change the constitution. I think what is important is what was in the air at the time-among academics, politicians, and some members of the public, but I wouldn’t say the majority; that is definitely clear-which was a call for a sixth republic. There were clearly demands that change occur. Also you have to think in terms of symbols, and symbols are very important in constitutional law. We had reached 50 years, and-I do not know what you know about French constitutional history-for France that is an achievement. I think it also needed to be taken into account. I think all these factors triggered it, but I wouldn’t say that there was popular demand for it.

Q8 Fabian Hamilton : Finally, can you tell us a bit more about the referendum of 2000 and why that particular change triggered a referendum above anything else?

Sophie Boyron: Yes. That is important, because I will be able to compare why we went for a referendum for one and not for the other. In 2000 there was a combination of problems. I told you earlier on that the constitution was meant to be a parliamentary system but was transformed from the beginning into a more presidential system-we call it "semi-presidential", we invented that term for it-simply because De Gaulle became the first President and it was pretty clear he was never going to be just a head of state with no power. I think that is quite important.

That practice lived on until 1986 when, for the first time, there was no support for the President in the Assemblée Nationale, which is our first Chamber, which meant that for the first time there was a parliamentary system that suddenly occurred. That happened a number of times, and the last time it happened it lasted five years. That was regarded by everybody to be a real issue, because it was not the best way. We were swinging between two different types of systems, and when we were in cohabitation, as we called it, the politics were very tense, were not very efficient. Political parties on both sides were using all the powers of the constitution to undermine each other. The President and the Prime Minister were having difficulty cohabiting, and so it needed to be cured in the real sense of the term.

Q9 Fabian Hamilton : I think the word "sclerosis" was used at one stage, wasn’t it?

Sophie Boyron: Yes.

Fabian Hamilton : It was legislative sclerosis. Nothing actually happened but-sorry.

Sophie Boyron: Yes, absolutely. It was really a problem. The last time lasted for so long that it was decided that was not the way to go, and one way of curing it-even though every single constitutionalist will tell you that that is not true, but I disagree-was simply to align the mandate of the first Chamber with the one of the President. So we curtailed the mandate of the President from seven to five years. That is what happened in 2000. For that decision, because it was endorsing a reading of the constitution that was not the official one to start with, it was felt appropriate to go to referendum. It was also a simple question, it was straightforward, and I think it was right. The choice I think was absolutely perfect.

Q10 Fabian Hamilton : It was just simply on that issue of the presidential power?

Sophie Boyron: Absolutely. Everybody understood that the idea was to try to get away from cohabitation, and that is exactly what happened. That was why there was a referendum in 2000.

Fabian Hamilton : Thank you.

Sophie Boyron: There was also a referendum-arguably, done unconstitutionally-in 1962, when the President of the Republic was elected with direct universal suffrage. The constitution was reformed by De Gaulle four years after coming into effect. That was arguably done unconstitutionally, but it was done by a referendum. It is very difficult for a court to then say that 60% of the people were wrong, so that stayed. But there was already a referendum and the habit of asking easy questions of the public, that is what I am saying.

Fabian Hamilton : Thank you very much; very helpful.

Q11 Simon Hart: Just an extension of that line of questioning. You were talking about the demand for constitutional reform, which is something that we have talked about quite a bit, in the context of Lords reform, the alternative vote, and all those other things that we have been addressing in the last year. Is there a proportion of the demand that you can attribute to public interest and a proportion of it that you can attribute to political interest, because there would be those cynics here who think that some of the constitutional measures that have been proposed in the last year have more to do with short-term political decisions than the long-term constitutional benefit. Nobody on this Committee would think that but there are those who might. Is there a proportion that you can measure?

Sophie Boyron: For the 2008 reform, if I was going to give you percentages I would say 70:30; 70 being political engagement and 30 being the population. I do not think the population would have triggered the reform themselves. My impression is that was not really where they were going. They might have been carried by the presidential campaign, which was fought largely-well, not largely, but partly on that point-but whether it was triggered by the people? No.

Q12 Simon Hart: It seems to be interesting that any election campaign could have as its foundations a constitutional platform, but what has the public reaction been since then? Has there been engagement, comment; what has the media position been? Has it been so far deemed to be something that was worthwhile and successful, in that it engaged people that you were worried that you were not previously engaging?

Sophie Boyron: I am not sure that it is that clear when it comes to the people, whether there was been clear engagement. One of the reasons I am saying that is that a number of the provisions are still being implemented, so it is going to take a while. But it has been received positively by the media and by commentators. Commentators started by saying we could have gone further, which is right. We can always go further. That is the reality. But in my own personal view-and I am not the only one-I think that was a great step in the right direction. There will need to be other steps, but that was a great step in the right direction.

Also, to come back to your idea as to where it started, why was it just a political campaign? A lot of these proposals had already been attempted and had failed before. That is also quite important. Often by other political parties; the Socialists had already started to do this and failed to get it through because of elections. All of these reforms-not all of them but a lot of them-had already been in the pipeline and already been looked at before, and that is quite important.

Q13 Simon Hart: My last point, Chairman, is do you think this has now unlocked a sort of enthusiasm for ongoing reform or do you think that is it for the time being? Has that satisfied everybody’s appetite, or do you think people now think, well, perhaps some sort of evolutionary approach to constitutional reform is now less painful than perhaps they thought before?

Sophie Boyron: I think it is the other way round. Another reason why that reform was also necessary is that there had been a lot of little reforms. We had 22 constitutional reforms prior to 2008. In the last 10 years there were a lot of them; sometimes two or three during the same year on small things. It was felt that that was not good; it was not good to have permanent constitutional change of that type. It would be better to attempt to do it all in one go, so that it would be consistent rather than touch one provision and then maybe unbalance another area, or something like that. So it would be better to have an overview of everything. People think that that will have finished constitutional change for quite a while, and I do not see that depth of reform for a while.

Q14 Mr Chope: There can’t possibly be any read-across from the French experience to the British one, can there, because you have described how you have already had five republics and you have already had 22 constitutional reform changes to this constitution in 50 years. We have an unwritten constitution here, which gives obviously immense flexibility. Can you see any read-across at all between what happens in France, on its constitutional arrangements, and what happens in the United Kingdom?

Sophie Boyron: I do not see why not. But I can tell you the other way round is the French did look a lot at what was happening in the UK to inform their own constitutional change. I know-because I know both systems-that we didn’t copy and paste it, but we definitely, especially when it came to parliamentary powers, looked at what was happening in the UK. A lot of the provisions, for example on the status of the opposition, were strongly influenced by what was happening in the UK. I do not think that that is necessarily impossible. I think there are two issues. If it is substance, then that is a choice that needs to be done at a political level. When it comes to process, why not be informed by what is happening somewhere else? If one is planning to codify a written constitution, why not look at what other processes have taken place around the world when it comes to drafting? I think there could be not necessarily lessons to learn but you could find it interesting and maybe pinch some ideas. Why not?

Q15 Mr Chope: One of the consequences of having a codified constitution, as the French have, is that you have to keep changing it. That is the history of it, isn’t it? It keeps being changed while our constitution is evolving, changing as and when we need to, because it is flexible, because it is unwritten. Why do the French not say, "Wouldn’t it be much better, instead of having the inflexibility of a fixed constitution, to have an evolving constitution like the Brits?"

Sophie Boyron: I am afraid that it would not suit the French temperaments. They already have difficulty respecting a written text. If there was not a written text I would be extremely worried as to what practice would be in place. Please do not quote me.

Q16 Mr Chope: Fundamentally, doesn’t it come down to a difference between what I describe as the Roman system of law, as against the common law, which has been developed in this country? To try and apply one set of constitutional principles or ideas from one country to this country, and vice versa, is to take the wrong route, it is a complete waste of time to try and make these comparisons.

Sophie Boyron: I do not think so, first of all because otherwise I would not be doing what I have been doing for the last 20 years. I believe strongly that comparison can be done across a number of systems. I do not think that the division is between common and civil systems because, in reality, when I look at the issues that have arisen, both in France and in the UK, there is a very interesting parallel-a frightening parallel, actually. Sometimes I do not know where the issue starts, whether it starts in one country or the other. But there is definitely a wealth of points where ideas are moving in the same direction in both countries, and I suspect this is not only France. I think a lot of countries are moving in the same direction, which is another issue.

However, there might be a problem in that every single constitutional system has its own principles or ideas, which are not necessarily cast in stone or even written, as is the case for France, for example, which inform the way they change their constitutions. For example, the French, until 2008-I think we can say now that we are rid of this, thankfully-when there was a problem with the constitution they would discard it and start from scratch. That was the tendency. That was a sort of reflex; I would call that a constitutional reflex. While the British have exactly the opposite; I think they definitely believe, or they want to believe, that their constitution has evolved slowly. I would only say one thing: it is not completely true, in reality. For example, it does create serious tension. Anybody who is involved in British constitutional law will be aware that nobody quite knows what is happening regarding parliamentary sovereignty, for example. It might be evolving, but it is leaving an awful lot of uncertainty. I think that is problematic at the constitutional level. Whether that requires codification is not for me to decide, on all sorts of levels, because of my nationality and because of what I am. I might say something in the classroom, but I would not say it here. To say that it is a "flexible constitution that evolves easily"-I do not think that that is true. It is certainly not what I tell my students. I think that is one of those myths that we believe very strongly in, but I think it is much more complicated in reality.

Q17 Mr Chope: Obviously we can’t take evidence from Her Majesty the Queen, but she has been on our throne for a lot longer than you have had your current constitution.

Sophie Boyron: Absolutely.

Mr Chope: During that time she has seen a lot of changes. Those have evolved and they have reflected the changes in the priorities of society in the United Kingdom. Surely that can’t be a bad thing, can it?

Sophie Boyron: I would rather reserve my comment. If we are going to discuss this, the only issue is, who decides those? I am actually starting from the wrong system because, certainly since 2008, the French have let the politicians decide. Certainly the people have been quite marginalised in those decisions. I think the people benefit from the constitution but they were not involved in it. That is also an issue with the British constitution; actually who decides it, and if it is left to the political class that is slightly worrying-at least slightly worrying for me.

Chair: And for many of us. Andrew-and I am sorry to cut you short, but our next witness is due on at 10.30.

Q18 Mr Turner: All right, Chairman. Ms Boyron, could you tell me, the direction in which the Comité des Sages was moving, was that more or less with the support of most of the political parties, or if there had been a row there would have been a row at that point?

Sophie Boyron: I think that is a very interesting point, how the issues were highlighted. Sarkozy, when he appointed the committee, had a short decree or letter, which stated a number of the issues he wanted to cover. However, they did not let themselves be guided by just that. Basically they threw open the constitution and saw everything that needed to be done, and they made a list. When you speak to the people who were on the committee there were two issues. One, there was nothing that could not be discussed but they were very strongly guided by consensus. If you look at the composition of the committee it is both academics and politicians, and politicians from the major parties on both sides. The idea was that it needed to be consensual, because the procedure in the constitution requires if you do not go to a referendum that you have a three-fifths majority, 60%, in what we call the Congress, all the parliamentarians together. So you need to have cross-party support for your constitutional reform, and they tried very hard in the work of the committee to achieve consensus on solutions.

That means that maybe in some areas some proposals, which would have been-"wacky" is the term that comes to my mind, but it is not what I am trying to say-a bit more revolutionary, were not examined. In fact, members of the committee when they talked to you would say, "I did not make that proposal because I did not think it would have support." There was a strong emphasis on consensus in order to achieve something, so that that reform, all that work, would not go for nothing.

I think you also need to realise that the committee was very important in highlighting the areas where there would be a consensus, and so on, but not all the proposals of that committee went into the Bill. I am told there was about three months of intense negotiation with political parties to create a Bill. That certainly was not simply drafted by the Government. There was intense discussion as to what would be acceptable and what could go through on that 60%. Sarkozy actually took a big, big step. He put that Bill to the Congress, not knowing whether it would be passed. Nobody knew. I was on the edge of my seat. I saw it on television. I could not get tickets to get in there unfortunately; I tried. But we did not know. It did come down to one spare vote, so it was very, very, very tight, because the Socialists and the Communists voted against it. It is not that they had anything against the content. I do not think so. They said some things about it, but I genuinely do not think it was that. I think they did not want Sarkozy to win such a big political battle so early on in his presidency. It was a big coup for him.

Q19 Mr Turner: Sarkozy got something that was agreeable; that was quite a success for him?

Sophie Boyron: Yes.

Mr Turner: Yes, right. I see. I did not know that there was a 60%-

Sophie Boyron: Yes.

Mr Turner: You understand the great problem we have is that we can’t tell the next Government what to do, and even putting a 60% rather than a 50%, it is not allowed.

Sophie Boyron: I perfectly understand.

Q20 Chair: A final historical question. The history of written constitutions is one where the people-in some form or other, representative or directly-are seeking to limit state power; is that the experience in France? Is it not the case that not to do that is to leave state power without limits?

Sophie Boyron: I would agree. Although, until this particular constitution, I would not say that we were terribly successful in the past at limiting state powers. I am only saying that adopting a written constitution is only-I don’t know-a third of the battle. The practice is extremely important, and the practice sometimes can come back to haunt you.

Q21 Fabian Hamilton : State power or executive power?

Sophie Boyron: I think it is also a question of political and legal culture. Can I just say one thing-I do not know-because none of you have asked me: when people have argued that the reason why it is not necessary to have a constitution in the UK, or a codified constitution in the UK, is because there has never been an event or a reason to adopt it, I strongly disagree with this. I do think that you could create the reason for it. You just need to have a process where you engage the people. I think I would certainly start by having a referendum as to whether there should be a codified constitution long before you even start drafting it. I think kick-starting the process with a referendum would be a good way to engage the people. I am also very aware that this is not something that is likely to happen-well, I do not think is likely to happen-in the near future, but I thought I should say it.

Chair: One never knows.

Sophie Boyron: One never knows.

Chair: Sophie, thank you for coming and, once again, happy birthday. I hope we have got your day off to a very good start, and I hope it continues.

Sophie Boyron: Thank you very much.

Chair: Many congratulations.

Examination of Witness

Witness: Peter Bajomi-Lazar, Senior Research Fellow, St Anthony’s College, University of Oxford, gave evidence.

Q22 Chair: Our next witness is Peter Bajomi-Lazar. Peter, how are you?

Peter Bajomi-Lazar: Fine, thank you.

Chair: Welcome. You are very welcome to the Committee.

Peter Bajomi-Lazar: Thank you.

Chair: We are looking forward to hearing your views, particularly on recent events in Hungary. Would you like to say something to start off, or would you like to go straight to questions?

Peter Bajomi-Lazar: Perhaps I should say a few words about the political context in which the new constitution was adopted a couple of weeks ago. As you know, Hungary is a young democracy. The last political transformation occurred in 1989, 1990. It was a peaceful transformation with the so-called Roundtable Negotiations in the centre. These negotiations took place between the reform Communist elite on the one hand and the emerging democratic opposition on the other. During these negotiations the old constitution, dating back to 1949, was heavily amended.

The 1949 constitution was a Communist constitution. It was modelled on the 1936 Stalinist Soviet constitution; however it was completely changed in 1989. Only one sentence remained and that was, "Budapest is the capital of Hungary." All the rest was changed. However, the amended constitution-the amendments were passed by the last Communist Parliament, and also the preamble of the law said that this was a temporary constitution-is still in effect. It is still called "The constitution of 1949", although it has nothing to do with the past regime. It is a liberal democratic constitution. It established a rule of law. It established a separation of powers, and it has not been criticised by any international or domestic organisations.

The legitimacy of this new/old constitution, however, was repeatedly questioned, because it was passed by the last Communist Parliament and not the first freely elected Parliament, which was elected only six months later. However, on the other hand, all the political parties in the past 20 years have been happy with the old constitution because their representatives had attended the Roundtable Negotiations. The idea of passing a new constitution emerged last year only, or perhaps the year before, it is very hard to say. As you know, the constitution was introduced in March this year. It was passed in April. It has been heavily criticised by various actors, like the Venice Committee and Hillary Clinton, Amnesty International, and the European Parliament just two days ago.

Part of the background is that we had in Hungary legislative elections last year in May. During the election campaign the issue of passing a new constitution was not raised by any of the parties. It was not included in any of the election programmes of the future winners. So it was not on the public agenda except on one occasion, which was a public event, a campaign event in 2009, when the future Prime Minister Viktor Orbán said that Hungary might need a new constitution. He referred, by way of example, to the Polish constitution, which is, in fact, the constitution the new Hungarian constitution is modelled on.

Chair: That is very helpful. To set our context, we are looking at constitution making and the processes. We are not criticising particular aspects of anybody’s constitution-that is a matter for them, and I understand there has been serious debate about those issues. We are much more interested in whether there should be a written constitution and how the processes of making that can influence the political sphere.

Q23 Stephen Williams: Peter, I understand that FIDESZ and the KDNP coalition have a substantial majority in the Hungarian Parliament. What was the share of the vote of those two parties that formed the Government in the 2010 election?

Peter Bajomi-Lazar: Hungary has a mixed election system. They had slightly more than 52% of votes, which was then transferred into some 67% of mandates of votes in Parliament. As you know, the constitution requires a two-thirds majority of votes. However, the old constitution said that, in order to establish the rules of the drafting process, 80% of the votes in Parliament are needed.

One of the first moves the incumbent Government did was to use its two-thirds majority to change this four-fifths rule in the constitution, which some critics would argue was an unconstitutional move.

Q24 Stephen Williams: It used its two-thirds majority in order to remove a four-fifths majority?

Peter Bajomi-Lazar: Exactly.

Q25 Stephen Williams: A bit novel. Better not tell our own leaders about that. Was the issue of amending the constitution an issue in the election itself, or was the election primarily fought on the usual sort of bread-and-butter economic and social issues?

Peter Bajomi-Lazar: During the election campaign the issue was not raised at all, except for that one public event in which the future Prime Minister spoke about that opportunity. It was not in the programme of the governing parties. Why the new constitution was passed is actually difficult to say. Viktor Orbán, the Prime Minister himself, said that the old constitution was a technocratic constitution, which is perfectly true. It was a liberal constitution. It was based on the idea of neutral state. He said that the Hungarian people were not happy with that because it does not express the true sentiments of the Hungarians. This was his argument in favour of a new constitution.

Others, like the Venice Committee, would argue that the ultimate purpose behind the passing of a new constitution was that the governing majority wanted to cement its political preferences, and its political system, for the next 20 or 40 years.

Q26 Stephen Williams: In the election itself-what I am trying to establish-was there a public demand or any sort of consensus at all among Hungarian parties, or the voters for that matter, that there was a need for constitutional change, or was it something that was sprung on the new Hungarian Parliament by a coalition Government that unexpectedly had a very large majority?

Peter Bajomi-Lazar: As I said earlier, there was no pressing need for a new constitution and it was not on the public agenda so the public’s position is difficult to detect on this issue. The new Government established a so-called Body of National Consultation, which was to consult with voters. They prepared a 12-question questionnaire, and they sent it to 8 million voters; that is, all eligible voters in Hungary. The objective of this move was to test public opinion on some of the issues that the constitution deals with.

Of the 8 million copies, there were some 900,000 replies sent back to this body of national consultation, and the press knows that the way these survey questionnaires were processed was not transparent in any way, and the 12 questions did not touch upon the most important symbolic and substantive issues that the new constitution regulates. So whether there was a true public demand for a new constitution it is hard to say. If there were any such demand there were no visible signs of that; 900,000 answers in a country of 10 million people-you need to decide whether that is an expression of a substantial public demand or not.

Q27 Stephen Williams: That is roughly an 11% return, so it does not have the validity of a referendum. It clearly was not a referendum. But in any consultation, which is done by a local council in their own country, the people who return consultation forms are usually much more concerned about the substance of the issue than the vast majority who do not. Has there been any analysis of the sort of people who returned these questionnaires? For instance, did FIDESZ get their own supporters to return them more so than the rest of the population?

Peter Bajomi-Lazar: That is a likely scenario. It could be hardcore FIDESZ/Christian Democratic voters who returned them, but there is no data on that. Also, whether this figure, this 900,000, is accurate or not is not known, because this data was released by this Body of National Consultation.

Q28 Stephen Williams: Have the parties that are not in government in Hungary, which I assume, by definition, are the equivalent of the Labour Party and the Liberal Party; the Munkáspárt and the Free Democrats-is that right?- said that if they were to win a parliamentary majority in future elections they will reverse these changes? Is opinion that polarised?

Peter Bajomi-Lazar: There was no public referendum on the constitution, although there was some public demand for that. However, the Prime Minister refused to hold a public referendum referring to the old constitution, which basically says that no public referenda can be held on amendments to the constitution. Some extra-parliamentary organisations have initiated a public referendum with the National Election Office, which rejected the claim referring to the same argument. However, neither the old constitution nor the new one says that no public referendum can be held to confirm a constitution that has been passed by Parliament.

On the other hand, it is to be noted that the three other parties in Parliament, the opposition parties-one being socialist, one being environmentalist, and a far-right party-did not support the constitutional change. The Socialist and the green parties were not involved in the drafting process. They refrained, because of the modification of the four-fifths rule, feeling that they would not have any impact on what the constitution would look like. They also refrained from voting for the constitution. The third opposition party, the far-right party, called Jobbik, Movement for a Better Hungary-I would say it is a neo-Nazi party-participated in the ward but voted against the constitution. In a way this is why it is a constitution reflecting the view of only one party, which is FIDESZ, with its very close ally the Christian Democrats.

Q29 Stephen Williams: From the background briefing we have for this session, it seems that many of the changes that have been made in this constitution are more social policy in nature, rather than about the democratic structures. Is that a fair representation of what is taking place? For instance, provisions on abortion, gay marriage, discrimination, and so on, have been embedded in the constitution.

Peter Bajomi-Lazar: I would argue that there are basically three major issues. One is the ideological aspect, which is directly stated in the preamble of the constitution, with references to God, to the Holy Crown, to Christianity, to the Hungarian nation, as such, as a cultural nation. This is one of the issues. It does not define Hungarianness on the basis of citizenship but on the basis of ethnicity. That is one issue. Then there are certain social issues, like whether social benefits should be given to those in need. In that regard, the constitution links rights to responsibilities, so that the right to social benefits, like unemployment benefit, could be linked to the duty to work, to do some kind of social work.

As a third group of issues, then, there are human rights issues-this is the area that has been most intensely criticised by the various organisations-such as the death penalty, which is an option; the protection of life from the very beginning of conception; the lack of a ban on discrimination based on age or sex; and also the curtailment of the rights of the constitutional court. As part of this third group of issues, perhaps I should also mention the high number of cardinal laws. There are 32 such laws in the constitution-laws that require a two-thirds majority of votes-including laws on taxation, the pension system, public burdens and other related issues. This is seen as the most problematic area, because any single Government in the future with a simple majority will not be able to govern. That is why the Venice Committee argued that elections might become meaningless and the very principle of democracy might be at risk in my country.

Q30 Stephen Williams: From what you have said about the different proportions that are now being needed to alter the constitution in the future, with 52% of the vote, essentially what this Government has done is embedded a social view of how Hungarian society should be structured within the constitution. That now can’t be altered by the people and could not be altered by a future Parliament unless there was a two-thirds majority; is that right?

Peter Bajomi-Lazar: That seems to be the case. However, this is a tricky situation. The new constitution declares the old constitution completely invalid. So then how come the Parliament established by the old constitution can pass a new constitution? This is a paradoxical situation. You could argue that a constitution passed by an illegitimate Parliament is not legitimate. This is one unfortunate issue. The other is that, should a Government change occur, which is very unlikely, in the next seven years, they might call a public referendum. That public referendum might not be binding on Parliament but it would undermine the legitimacy of the current constitution. This would somehow prove a legitimate ground for a new constitution to be passed. On the other hand, the processes needed for a new constitution are very unlikely to emerge in the near future.

Q31 Chair: I am going to have to move on and ask colleagues to be a little quicker.

One quick question from me, Peter. I would argue that, to be effective and to be sustained, constitutional change requires legitimacy. If you were advising a country on establishing a new constitution would you say that, if they were to follow the recent Hungarian experience, they would be doing so without the basis of the legitimacy that is required?

Peter Bajomi-Lazar: That is a hard one, of course.

Chair: That is why you are here.

Peter Bajomi-Lazar: I would certainly argue that the legitimacy of the Hungarian constitution is, at best, lacking. It does not have a full legitimacy, neither on procedural grounds nor in terms of popular support. So this is certainly not the path to follow.

Q32 Chair: I think, in exploring this issue, it is nice to know the best way to do it and also perhaps nice to know the way that might not be the best way to do it.

Peter Bajomi-Lazar: I would not advise you to do so.

Chair: Chris, and then Tristram. Then I am going to call questions to a halt with this witness.

Q33 Mr Chope: As you say, it has been criticised by the European Parliament; what possible status does the European Parliament have to interfere in the Hungarian constitution and the choice of its own elected Parliament?

Peter Bajomi-Lazar: That was exactly the reaction of the Prime Minister, Viktor Orbán, to the criticisms and the recommendation of the European Parliament to amend the new constitution. It has no such authority. It can only make a recommendation and it is the power of the Hungarian Parliament to make a new constitution.

Q34 Mr Chope: The people have a good safeguard, in the sense that Hungary remains a signatory to the European Convention on Human Rights. All the social issues that people have been concerned about will be covered by the European Convention on Human Rights, which has to be applied within Hungary and interpreted by the Hungarian courts.

Peter Bajomi-Lazar: I am not sure I understand your question, sorry.

Mr Chope: What is being argued is that there are various-what we might describe as-Christian issues of ethics embedded now in the constitution, which were not there before, and that these may run contrary to the European Convention on Human Rights. But Hungary remains a signatory to the European Convention on Human Rights, so those concerns are surely unrealistic because the European Convention on Human Rights is still going to cover the citizens of Hungary.

Q35 Chair: Is the European Convention on Human Rights superior to the constitution of Hungary?

Peter Bajomi-Lazar: I cannot tell. I cannot answer that question. I would rather expect some kind of an informal impact by Europe on the Hungarian legislative, as was the case last year with the Broadcasting Act, the Media Act, which was also controversial and which was modified at the end of the day, although not very heavily, because of European pressure. I can’t give you any better answer than that. It is stated; we will see that in the future.

Q36 Tristram Hunt: This is the problem with written constitutions, in that they necessarily reflect the social and cultural preoccupations of the day. How do you codify centuries of political consensus and the nature of governance into a single document, which is necessarily, on the one hand, going to raise hackles about Christian conservatism; with on the other hand, Amnesty International worrying about its omitting sexual orientation, gender identities, grounds of discrimination, as does the American constitution, as far as I know. Are these problems inherent in this kind of artificial codification?

Peter Bajomi-Lazar: It is very difficult to make a comparison with countries like the UK and Hungary, the history of the two countries being so different. Here there has been a great deal of historical continuity, as you know. By contrast, Hungary had 10 different political systems in the 20thcentury with very different ideological positions. So the point in trying to make a good constitution at the time of the political transformation was to establish some kind of continuity, some kind of political stability in the long run. In order to do that, and because there have been some historic examples of previous constitutions, that seemed to be a rational move, a rational thing to do, in that political situation, in that historical situation and in that geographical position in Central and Eastern Europe. Whether it is a model or not is a difficult question.

Q37 Tristram Hunt: So you would be sceptical of reading across a fashion for written constitutions from a country such as Hungary, with its geographical and historical context, to somewhere like the UK?

Peter Bajomi-Lazar: I do not see any similarities between the two countries in terms of their historical, cultural and legal legacies.

Q38 Tristram Hunt: No. I quite agree. What is your prediction for the prospects of this constitution? I know that is probably an unwelcome ask, but do you think in five years, 10 years, the whole process will be gone through again?

Peter Bajomi-Lazar: Based on the experiences of the 20thcentury, it is highly unlikely that Hungary will preserve its current form of state, its current political structure, for more than, say, 20 or 30 years. We have never had such an experience in the past couple of hundred years. My personal fear is that this system will stay for perhaps a generation, because the Government does a good job in preserving its power and the new constitutional system that it has established; this includes elements like the weakening of the separation of powers and the weakening of constitutional control over what a Government does. If I may use a strong word, I would say that Hungary is becoming an oligarchic system, with a party or a nomenclature system. That system might survive as long as the charismatic leader is in place, and as long as the oligarchy that he is in the process of establishing at this very moment, as long as these people are there.

Chair: Peter, thank you very much indeed. That has been extremely helpful and very illuminating. Thank you very much for giving evidence this morning.

Examination of Witness

Witness: Dr Bill Kissane, London School of Economics and Political Science, gave evidence.

Q39 Chair: We will move on to our last witness, Bill Kissane. Bill, welcome.

Dr Kissane: Thank you.

Chair: How are you? You have been listening intently.

Dr Kissane: Learning a lot, anticipating questions.

Chair: I do not think there will be any surprises. Bill, very good to see you, welcome to the Committee. Would you like to say a few words by way of introduction? I understand you are not only going to talk about Ireland but Turkey as well. It seems an unusual combination, may I say?

Dr Kissane: I should start by saying something about this comparison, because it is pretty obvious that Ireland and Turkey are different in certain ways. One is a very diverse Islamic country; one is a very homogenous ex-Catholic country. Turkey, it seems to me, is on its way to being a regional and maybe a global power. Ireland is a small country; it is not a great power. As far as we have records for human history, it has never been a great power. So this is a very big difference between the two cases. Also I think Ireland, since independence, has had a fairly stable record of democratic Government whereas in the Turkish case, since the Second World War, it has been stops and starts. I think this really impacts on how we view constitutions and constitutionalism in these contexts.

But there are points of comparison. The first is that constitutional reform or a new constitution in Turkey is very much on the agenda, since the last election. In Ireland there was an election in February. The leader of the party that won the election, Fine Gael, said, "This is a democratic revolution" because it completely obliterated a party that had been in power ostensibly for 20 years, Fianna Fáil, who were the original authors of the constitution. In Turkey, of course, you probably know that in early June, for the third time, the AKP Party increased its vote and has now just under 50% of the popular vote in Turkey and a huge majority in Parliament. So it is intent on introducing a constitution.

The second point of comparison is that, whatever happens in Ireland-and I think what is going to happen is that over the next 10, maybe 15 years, there is going to be a very long, gradual process of political reform involving many constitutional amendments; to me this is something that is almost definitely going to happen-in Turkey, the consequence of this electoral victory is that they are going to introduce a democratic constitution if they can, so there is going to be a knock-on from these election victories. Then the third thing is for both countries. There is going to be a referendum procedure to introduce a new constitution in Turkey, almost definitely, and in Ireland every constitutional change since 1937 has required a referendum, so this will continue. There is no other way of changing the constitution.

But I should say, because I think a lot of the questions that have been asked by this Committee-particularly the ones concerning the British experience and the Hungarian experience in contrast-are about the value of constitutionalism as a specific form of politics, separate from other forms of more ordinary politics. Here I am a little bit of a sceptic, because I think in political science there is a very big romance about constitutional politics. If you believe in this romance you will say that what is happening in Turkey, for the first time since independence, is that a democratic constitution is going to be introduced in a consensual way, which is going to reconcile society, heal social divisions and basically put the country on a more democratic path. In Ireland, if these amendments go forward, and every party in Ireland supports political reform, you could say we are going to become a better governed country; we are going to realise the ideals of the founding fathers, and so on.

The cynical approach to all of this is that what is actually happening in Turkey is that this constitution-making process is going to be a means by which an Islamic party, with a huge electoral momentum behind it, entrenches itself further in state institutions and imposes its own ideology on the society. If that constitution endures, it will be a result to some extent of its ideological hegemony in society.

The problem I have with some of the constitutional discourse that is taking place in Ireland is that there is a huge degree of populism in the political culture; that this economic crisis has revealed the failings of our political system; allegedly, that there is some connection between the constitution and how badly we did during the financial crisis and, therefore, that constitutional change is a way of dealing with this situation. The problem is, even though all the people who propose constitutional reform are well intentioned, the record has been that it is exactly these FIDESZ-type preoccupations-values, identity-that are processed through constitutional politics, but the fundamental things, whether to do with fundamental power relationships in the state or the economic problems of the country, in my mind cannot be addressed so easily through referendums, citizens’ assembly and so forth.

It seems to me Ireland is a very peculiar case because, as I said, there is a certain amount of constitutional populism, which is saying that the elite have let us down, and we were not to blame for the fact that we elected these elites into power over periods of time. What happens then is that Parliament and representative politics and electoral arrangements become discredited, and instead constitutional politics are seen as a means of addressing these fundamental issues. But the record since independence is that constitutional politics have not been able to deal with a lot of very fundamental issues.

In Turkey, it seems the idea that a democratic constitution, which is not introduced in a consensual way, is in some way going to be a democratic experience, in the sense of when the Spanish or the South Africans introduced their democratic constitutions, creating a totally new beginning for society-this seems to me completely and utterly unrealistic.

Q40 Chair: May I just press you? If there is going to be abuse by an established elite of the process of making a written constitution, which arguably a case has been made about that happening in Hungary, will that elite then not be abusing other levels of power, be it passing laws or the way in which it treats its own population? Are there then no means by which things like individual rights, justice, democracy, can be entrenched beyond the reach of an abusive elite? Isn’t your counsel one of despair?

Dr Kissane: No, it is not one of despair. I think it is one of de-romanticising the process. I think in Turkey there is a very good case for saying that this AKP Government has been campaigning for a democratic constitution since 2007. It has a mandate. When it launched its electoral manifesto, the first thing on the agenda was "ileri demokrasi", advanced democracy for Turkey. They will achieve that in certain respects, because what they are trying to do is shift the power in the political system from a previously relatively authoritarian military-dominated state to a party that has an electoral basis for legitimacy. In doing so, they may strengthen rights; they have done in the past. They may strengthen the courts, although until recently they have been weakening the courts. They may change the checks and balances to some extent. But the problem is that what is also potentially on the agenda is the shift to a more presidential form of Government, which of course would then be run by the person who is now the Prime Minister, and that just sets the alarm bells off in the rest of society.

It is not a counsel of despair. I just think it is not going to be this democratic breakthrough that we have seen in South Africa, Spain and other countries that were in a more symbolic way renouncing an authoritarian past and embracing a democratic future. You have to realise the fears that are there in society. For example, are the AKP Government going to weaken secularism? Are they in any way going to deal with the Kurdish issue? The evidence from the election campaign is that they are not engaging with this anymore. Are they going to reconcile the secular section of Turkish society, which is 25%, 35% of the population, with this kind of majority argument that, "We represent the national will and we, of course, are also an Islamic party"?

I think, in answer to your question, that the problem is not going to be whether they are capable or willing to improve democratic standards. The problem is the process might accentuate the polarisation that is already there in society. If then they present this constitution through a referendum-let’s say with the co-operation of a small number of parliamentarians-and present it through the referendum as a fait accompli, what you then have is a constitution that is very much identified with them. Then, down the road, if their electoral dominance decreases and other forces come into power, you have again a renewal of the constitutional argument and the legitimacy of it, and so forth.

Turkey has had constitutions before. None of them have been introduced in a consensual way. The military has always been involved one way or another. This is probably going to be a more democratic process, but the way Turkish democracy has developed it seems to me it has always been stops and starts. On the idea that there is going to be this fundamental breakthrough through the constitution, which many people really hope for, there is consensus in society on a democratic constitution, and all the parties support this, but the parties can’t get together and agree.

Q41 Chair: Your problem appears to be with the legitimacy and the lack of consensus, rather than with the concept of writing down basic rights?

Dr Kissane: No. I think actually that the need for a written constitution is absolutely there. The court system is in disarray. Numerous cases are going all the time to the European Court of Human Rights, and there are restrictions on freedom of expression. Every party, apart from the secular party in the last 40 or 50 years that has appeared, every type of party, has been closed down by the constitutional court. This is a society very much in transition to democracy, and I think it is absolutely clear that you need a written constitution. The problem is that the politics have become totally embroiled in various forms of identity politics in Turkey. Therefore, you have this polarisation. You have no trust and it is obvious that this AKP party is becoming a dominant party. They have won three elections, and during the last election campaign their programme for Government was not for the next four years but until 2023, which is the anniversary of the republic. They expect to stay around for some time.

Q42 Fabian Hamilton : Dr Kissane, that was a very interesting introduction to Turkey. I have long had an interest in Turkey; I have been many times. The new constitution, though, that is being proposed, I accept that it is part of the transition to a true democracy, an advanced democracy. How far is it going to try and embed the Islamic nature of Turkey and change that real commitment to secularism by the founding father, Mustafa Kemal Atatürk, and how much is the new constitution to do with the ambitions of Turkey still to join the European Union?

Dr Kissane: I think on the first question you have to make a distinction between what they are actually going to write in the constitution and how people perceive the process, because up to now the AKP party has said, "We respect those first articles of the constitution that define the nature of the republic, including secularism." The fourth one makes those articles not amendable, so they have said they would respect that. But the problem is, throughout society, is the constitution going to allow this party’s dominance, through social pressures, through acquiring more and more economic resources, through the influence of all these religious brotherhoods, through pressure on women in the workplace to dress in a certain way, to continue and intensify, or not? That is a slightly different issue.

The problem about the EU is that the EU was great for Turkey about 10 years ago because there was this big debate in the press about democratisation. Everyone is in favour of democratisation; the language of democratisation is everywhere. But the problem in Turkey is everything is democratisation. If someone writes a novel, it is democratisation. If a welfare organisation is established, it is democratisation. The EU was very important, in so far as it provided an anchor for that debate about democratisation. But I would say, since about 2005, nobody seriously believes that the EU is that committed to Turkey as a candidate member. The Turks have always wanted democracy and the EU has facilitated that wish at particular times. The important thing about the EU was that the AKP could benefit from these EU sponsored democratic reforms because it would weaken the military, but also sections in the military were in favour of joining the European Union, so it was a nice kind of co-ordination device for the political system as a whole.

The way it does matter, of course, is if they are going to write a constitution, and they have been getting together legal experts over the last two election campaigns in their party to focus on this issue, and it is obvious that they are going to take a lot of their values and norms when it comes to human rights, judicial review, and so forth, from EU precedents and EU law. But in terms of the EU actually being a player in this or it being done "because we want to be in the EU", I am not sure I really believe that anymore.

Q43 Fabian Hamilton : Let me put this to you that, prior to the AKP being elected in 2002, politicians and the political process were in huge disrepute in Turkey. Nobody had any trust whatsoever in politicians, and the constant coalitions of different parties in Government were incapable of leading the country. So the military appeared even then-even though they were not in power and there was no military coup at that time-to be dominating. For example, when I met the Defence Minister, in April 2002, he hardly said a word but his Chief of Staff made all the running and spoke very good English. Surely what the AKP has done is shown that politicians can be competent, trustworthy and committed to democratic ideals. Would you say that one of the reasons for their popularity is as much their commitment to Islamic values as to leadership, democracy, freedom and the rule of law? Discuss.

Dr Kissane: It is a number of things. There is the Islamic factor. There is the fact that, as you have said, they have been doing very well economically, providing strong government. That is their electoral appeal. He stands up and says, "We are going to have a university in every town. We are going to have a hospital in every district. We are going to have a third airport in Istanbul." That is the election appeal. It is not religion. Religion might be implicit but it is not explicit.

The thing about democracy really is that they are putting journalists in prison. Right. There are severe restrictions on freedom of expression in that country. They have not been changed. In terms of the Kurdish issue there was this democratic opening three years ago. Very little has followed. It is almost like that early AKP mood kind of dissipated. It might have dissipated because the EU itself disengaged, and maybe this democratic constitution making process will galvanise that process. I am not saying that the AKP are not democratic. They have achieved something that is very fundamental, which is that they have shifted power away from the military. That is the historic achievement. The point is-

Q44 Fabian Hamilton : Are the military still a threat to democracy in Turkey? Sorry to interrupt you, but they were seen as that-the deep state.

Dr Kissane: Of course, it is very recent that they were putting pressure on this Government, but in the last two or three years they have really been sidelined by a lot of the events that have taken place, and this election has furthered that process. I suppose what people who do not like the AKP will say is, yes, they are democrats, democracy understood as majority rule and our rule, but they are not necessarily liberal or pluralist democrats. For that reason a lot of people, maybe naively, think that this constitution-making process should be a more broadly based consensual one involving, if not other parties, wider strands in civil society, which have also been demanding these changes for the last 50 years.

Q45 Andrew Griffiths: Dr Kissane, if we could come on to the judiciary, could you give us your take on what effect these constitutional changes in Turkey are going to have in relation to the operation of the judiciary in Turkey? Do you think it is-

Dr Kissane: In advance of coming here, I said that I was not really an expert on Turkish law and the judiciary. The only thing I am going to say is that, once again, the judiciary has been undermined by the perception that the judiciary is on one side of an ideological divide, whether it is Islam versus secularism or whether it is Turkish nationalism versus Kurdish nationalism. What has actually happened in the run-up to this particular election is that the judiciary-I think it was the Electoral Commission in this instance-banned a number of candidates from standing in the election. There was complete uproar in society, a sign of how far things have actually gone. Then, of course, the Kurds: there were seven Kurdish potential candidates banned. The Kurds assembled in the centre of Istanbul and there was a huge fracas going from the centre of Istanbul all the way to Aksaray. This could not have happened 20 years ago, but there was dismay at this decision.

The logjam at the moment is that the courts have decided that a number of people who are now in prison, or people with former convictions for supporting terrorism, cannot take their seats in Parliament. Therefore, the Kurdish party is boycotting the Parliament and the CHP, which is the secular opposition, 25% of the vote, will not take the parliamentary oath. It is hard to see where the consensus is going to come from until this is resolved.

As I said, I am not an expert on the judiciary but I think that fundamental reform of the judiciary is necessary, firstly, because they cannot be seen as the gatekeepers for a system that existed since the republic was founded and which is becoming obsolete; secondly, they seem to be very heavy-handed in the way they deal with some of these issues, so it must be a huge issue. I suppose the real concern of people about an AKP constitution is, are they trying to penetrate state institutions, including the judiciary, or do they really want the strong system of checks and balances? That would involve the judiciary. That is all I can say about it. I am not an expert on it.

Q46 Andrew Griffiths: Moving on then, moving from the judiciary to something else you mentioned, which was that journalists were locked up, journalists in prison. Could you give us your view, first of all, on the implications as you see it of the new constitutional reforms, in relation to freedom of the press, in relation to how that is going to operate; and secondly, whether you feel that, with the way the media operate at present, there has been proper scrutiny in the media of the proposed changes, so that the population of Turkey can properly understand what is going to happen?

Dr Kissane: I think there are over 30 journalists put in prison by the current Government, and-

Andrew Griffiths: We might have the same situation here very shortly.

Dr Kissane: But it is not comparable, because I think the suspicion is that this Government is intolerant of criticism. This has been going on for two or three years, and here again this is where the fear is about an AKP-imposed constitution. I can’t answer the question, any more than I can answer the question about the judiciary, as to what they are going to do with freedom of the press and freedom of expression. But that particular article in the penal code, 301, which allows the courts to bring people to trial for offences against Turkishness, insults against Turkishness, to my mind this has not been on the agenda in the election campaign. As a matter of fact, even though there is consensus on having a new democratic constitution, actually the new constitution or the Kurdish issue were not really debated very extensively in the election campaign. There was not a deliberative process, so I do not really know what is going to happen in both these respects. It is much more of a polarised electoral form of competition, and these particular issues, which are definitely extensively debated in the press, were not part of the election campaign.

Chair: Just before you go on, just to remind colleagues, Bill is here and, really, his first string is Ireland, and Turkey is not far behind, but I think if we can get on to some of the Irish questions, too, that would be helpful.

Q47 Andrew Griffiths: Moving on to Ireland then, Bill, if I may. To what extent do you think the proposed changes in Ireland are something that the public are calling for, the Irish people on the doorsteps are clamouring to see, or to what extent do you think it is a political operation, in order to show that things have changed and something has altered in the political world? Secondly, in hindsight, what effect do you think these proposed changes would have had in preventing the kind of economic meltdown that we saw in Ireland?

Dr Kissane: I like the second question; this is the key one. The first one is pretty straightforward. Every party by the time the election took place proposed constitutional reform. The Labour Party and the Fine Gael Party went so far as saying they were going to establish a constitutional convention, or some kind of citizens’ assembly, asking the people themselves what they consider important with regard to constitutional reform. For this reason, I think it is more or less true that there is an appetite for change. I do not think the parties would have all responded in this way unless it was coming from the doorstep. I think that is pretty clear.

The second point is a hard one because, as I said, I am not much of a fan of constitutional populism. I do not actually believe that there is an intrinsic connection between our constitution and the way the economic crisis impacted on Ireland. But just consider, from a British perspective, what you might identify as some of the problems with the Irish political system: weak Parliament; anomalous position of the second House; Executive-dominated Parliament; anomalous relationship between central and local Government; and, of course, this idea that all our politicians are these local messenger boys that people love when they are voting for them but they do not like what they do in Parliament, because when they are in Parliament they are always dealing with their constituencies, right?

The question for you would be, from a British point of view, is it so obvious that if you changed things in these respects you would be better governed in terms of economic policy? It seems to me that the Irish economic crisis has become largely about the banks. You take that out of the equation and it is not such an existential crisis. So what does the constitution say about the banks? Very little.

In terms of the argument that we can engage in this process of constitutional reform and in some way involve the people in making decisions, one of the things I am interested in is the way of making the Parliament a genuine legislature and making parliamentarians think about the national interest. Is the way of doing that to go and strengthen local Government and really force local Government to take on more responsibility? It seems an obvious move. But consider the very origins of the Irish state: when we became independent we had had local government for 20 years. They all hated it. They associated it with corruption, nepotism, inefficiency and waste, and when they got into power they practically emasculated local government as part of achieving these civic values. Don’t forget we have a very schizophrenic attitude to the state, we externalise the state when something goes wrong, but when we try and explain why it has gone wrong we say, "It has something to do with our culture", right? What seems to have happened is whatever we saw wrong with local government in the 1920s has entered into the national political arena.

You have to bear in mind that Ireland was a relatively poor country. An awful lot of money came into that country very quickly. All parties, including civil society, the business elite, the parliamentary elite, believed they had found an economic model that they were going to run with and was going to be successful indefinitely. That is where they went wrong. There were no checks and balances within the system, but neither were there any checks and balances in society generally, because this was an overwhelming kind of economic momentum.

The answer to your question is, personally, I think there was very little we could do, in terms of reforming the system that would have prevented us being exposed to this economic collapse. In terms of institutional arrangements, I do not believe so. This question about how do you get higher-quality representatives in Parliament? Right, one of the arguments is that we live in global conditions, we need big picture politicians. So you change the electoral system to have the list system and parties begin to choose who the MPs are. But this takes away from the element of representation of constituencies. It is a trade-off and, like in any other thing in politics, you have to find a balance. I personally believe if we had a vote on the electoral system we would not change it. If we had a vote on local government, it just seems to me such a complex issue that I can’t see how it can be done so easily. My answer to your question is no, the economic collapse would have happened anyway.

Q48 Chair: I don’t know whether there were people who were saying that the economic collapse would not have happened if the constitutional settlement was different-were there?

Dr Kissane: It is implicit in the argument that what has happened is that our political system let us down, and this resonates with the political culture and maybe a constitutional order, where Parliament and elected representatives have been discredited and associated with vested interests, corruption, and so on. Other institutions like the presidency, the Supreme Court; you have seen what happened when the Queen went to Ireland; everybody loved it, and she is not elected. It is something in the culture, right? But the argument has been made that the constitution has let us down.

I must say, in answer to your question, many of the proposed reforms are not just about the model of government. They are addressing things like women’s status in the constitution; same-sex marriages; children’s rights; and judges’ pay. I think all of these things will be accepted by the public but, no, they will not affect our economic fortunes.

Q49 Chair: You identified a checklist of things, which I think you meant to apply to Ireland and the UK, about a weak Parliament, an overbearing Executive, very frail local government, and so on. Addressing those problems, is it helped by having a debate-many people, even within those institutions, would not accept there is a degree of self-deception about their own strength and their own relative merits within the system-about people’s relationship, the power relationship between central and local government, between the Executive and the legislature, between the respective strengths of those things? Would that not be quite healthy and help lead towards a resolution and a rebalancing that could be on the basis of a consensus?

Dr Kissane: Firstly, I think the consensus for this change is there and it is going to remain in terms of party politics. Secondly, I agree that we should have a debate that is not conducted in the media but a genuine debate over a long period of time, high quality, to think about the implications of having a very centralised state and a weak Parliament. The programme for government between these two parties that are now in power actually says the Parliament is only an observer. We have a centralised and unaccountable political process.

Q50 Chair: This is in the UK?

Dr Kissane: These are in Government now.

Chair: In the UK?

Dr Kissane: This is in the programmes of government in Ireland.

Q51 Chair: What about the UK? Are you drawing the same conclusions?

Dr Kissane: I think one of the differences in Ireland is that we have, I suppose, a more constitutional culture, simply by virtue of the fact that we have a written constitution and then we have the referendum requirement that requires all amendments to go to the referendum. The tendency has been-let’s say since 1980-for more referendums and also for more referendums to be passed, right? So this is a very different dynamic to what would take place in the UK. But if you take something like the electoral system or local government or the relationship between the Dáil and the Cabinet, or the Parliament and the Cabinet, I am in favour of discussion of all these issues, but I am not in favour of populism. I am not in favour of the idea that these are very simple black and white choices and that you just reform because you are going to produce the desired result, and also-

Q52 Chair: We got that message. I am not sure who is giving you that message all the time, but you are certainly knocking it over very explicitly.

Dr Kissane: But there is also a track record to this, which is that a lot of these issues go right back to the very establishment of the state and we have not been able to deal with them through this constitutional process. It may be now, because of the party consensus and because you have these citizens’ organisations putting pressure on politicians to deliver reform, that we can have that debate. Until now it has not been possible to debate things like the centralised nature of Government; the weak Parliament. Of course, parties have written policy manifestos, but generally our constitutional order has tended to be revolving around questions like Northern Ireland and religion in the constitution, social policy, things like this.

Q53 Mr Chope: A quick comment on Ireland. Why do you think the Irish people are not debating actively whether or not they should stay in the euro? That would seem such a logical thing to be discussing in the light of the economic crisis. Is there some constitutional bar on that or is it just a cultural bar or what is it?

Dr Kissane: Was it Karl Marx who said, "We recognise situations as problems only when we have a solution to them"? We can discuss constitutional reform; we can discuss changing the constitution in certain ways; but these fundamental questions of whether we should default, whether we should leave the euro, what we should do with advice, basically, it seems that the Government in power is approaching all of these very cautiously. What it is trying to do is convince international markets, and its European partners, that we are a credible player economically. Leaving the euro, the only party I think that would stand for that strongly would be Sinn Féin, who are growing but they are still a small party, so it is not really part of this debate about political reform.

Of course, that gets to the point I made at the start, which is that constitutional politics, in a way, is a kind of deflection of underlying structural problems. Since the 1960s we have basically shifted our foreign policy and our economic policy towards engagement with economic integration and ultimately globalisation, and we have benefited from that. I still think at the elite level and among the parties there is consensus that we should continue down that road. It may be that that is a fool’s paradise because a lot of people do believe that one of the reasons we have this crisis is because we are in the euro; and secondly, that default is going to be necessary, one way or another, because the figures are so great. But it is not part of the debate about constitutional reform.

Q54 Mr Chope: That is a very interesting answer. Can I leave that subject and turn to Turkey quickly? What has struck me about what is happening in Turkey is that you have a list system, you have political parties and you can’t get representation in Parliament unless you get 10% of the vote to start off with, which excludes an enormous number of potential political players. The list system has been used by the AKP and perhaps by the other parties as well, as a real means of tight control by the Executive and the leadership of those parties over those people. Just in this last election a lot of well-known, well-established AKP parliamentarians were knocked out, not by the electorate but by being pushed down the list or removed from the list altogether. To what extent is constitutional change in Turkey going to bring in some proper checks and balances-which you have referred to repeatedly in your comments, I think quite rightly-which are fundamental, including proper separation of powers?

Dr Kissane: I think, on the question of the electoral threshold, Erdoğan said in his election campaign, after promising a Kurdish opening two or three years ago, that the Kurds should fight harder to reach that 10%. His own commitment to this reform seems to me fairly lukewarm because he, of course, is competing for the Kurdish vote himself. That is very, very important.

The second thing is, in terms of party control through the list system or other means, all Turkish political parties are extremely authoritarian, based on the leader. I do not know whether there is any discussion as to whether this should be addressed constitutionally, but it is a huge problem. In the previous party leader’s role in the CHP, the secular party-I think it was Deniz Baykal was the leader-he held that party back for five years, and it was only when they got rid of him that they started embracing a more liberal and a kind of democratic agenda. It was a huge issue.

On the checks and balances, put it this way: is there a connection between the process and the outcome? Turkey has had to write constitutions, in 1982 and 1960, to deal with breakdowns in a democratic system. The one in 1960 was highly democratic with very strong checks and balances, and the one after the military coup in 1980 was for a guided democracy; it was quite authoritarian. Two things you can say about this is that they did not succeed in achieving what they were intending to do, either making the country more democratic and getting away from party dominance or, alternatively, controlling political parties. It is a debate about whether the constitution process can do this anyway.

The second thing is we are still living with the legacy of the 1982 military constitution, and this is seen as a coup constitution. It created organisations, like this YOK organisation that controls higher education. If this constitution is going to be democratic, it should change or remove those constitutions with more democratic forms of control and balance. Of course, the suspicion is that the AKP is actually using the argument that these institutions are undemocratic to take control of them, right, and impose a new form of control on universities. So we get back to this question, what is going on with this particular process? But I think you are absolutely right.

Ireland also has had a constitution written in 1937 by a man who had been in prison 11 years earlier. He was considered by some people a complete dictator, but his party had won three elections. He rejected the treaty we signed with Britain, and said, "We are going to have a new constitution." He imposed it by a referendum. The majority of the electorate did not vote for it. But over time, whatever they did right in this process, they created a very strong system of checks and balances. You think of the status of the Supreme Court in Ireland, created in 1937, very high; the rights provisions, very, very admired in Ireland; the presidency, another aspect of the system of checks and balances. They all emerged from this process. In Ireland, at least, there was no connection between the process of imposing a constitution and the outcome, but in Turkey I just can’t say. As I said, my firm conviction is this is not going to be-

Chair: I am going to have to stop you there because I am conscious of getting three other further colleagues in.

Q55 Tristram Hunt: Very quickly, we have a slightly mad Bill going through, I think the House of Lords, at the moment, to introduce referendums every time the European Union have lunch at midday rather than 1 pm or something. The constitutional proposals in Ireland, a referendum to amend the constitution to allow the state to cut the salaries of judges in restricted circumstances, a referendum on that, what is that about?

Dr Kissane: Basically, in 1937 it was seen that you had to protect judicial review and the independence of the judiciary. At that time, I suppose, judges were paid about £50 a year so it was not seen as a particularly onerous thing to prevent the state from reducing their salaries while they were judges, and they are judges for life. The problem now is that the political elite, Enda Kenny, the Prime Minister, has already cut ministerial salaries. He knows if he is going to be credible he has to put his best foot forward. The perception is that we have this elite that is just earning too much money. If judges are earning €300,000 a year, €250,000 a year, should their salaries be cut in the same way as civil servants’ salaries, university lecturers’ salaries or anyone else’s salaries? Everyone is being asked to make cuts, so why not judges? But it is in the constitution, you cannot change them. Of course, this is one of the problems. We have had referendums on Cabinet confidentiality. We are going to have referendums on children’s rights. We are going to have referendums-

Q56 Tristram Hunt: On that, is the prospect then for a super Thursday multi-referendum day where you all pile through these things?

Dr Kissane: We are going to have the referendum I think on the same day as the next presidential election.

Tristram Hunt: Right.

Dr Kissane: But if this programme of Government is going to go ahead, I can foresee between five and 10 referendums taking place in the next 10 years, for sure.

Q57 Tristram Hunt: Then the connection in your work, and what we are talking about today, is that the process of constitutional change in Ireland is about fast-tracking and implementing the secularisation of the Irish state, and in Turkey it is about re-secularising the state, and constitutional change is a vehicle for those cultural objects. That is why we have all this stuff about women in the house and children’s rights and same-sex marriage. Our politics today is so much about cultural signifiers that that is surely going to be then embedded in any process of constitutional change.

Dr Kissane: It is like you say about the British constitution evolving to reflect changes in society. Since 1969, the general tendency has been this process of secularisation, liberalisation and so forth. For me it is exponential because there is no party now that has anything to gain by standing up for the Catholic Church, no party. Then we have this proclamation in 1916-the anniversary of that-and independence, and the idea then that we should become a proper republic, right? That these changes are going to be necessary to be a proper republic based on citizenship and equality. I think these changes are almost definitely going to take place, but we go back to the problem that the euro and default and the immigration and all this, this cannot be processed in the same way, so you have a very funny kind of political dynamic taking place.

Just in case I have been critical about this process, I actually think these changes reinforce the constitutional order because the constitution, once it is seen to be adaptable, to some extent then gains in legitimacy. It is a process of evolution. It has been going on now since basically 1972, which was the first referendum when the status of the Catholic Church was removed from the constitution. By and large, the public and especially young people will respond to these changes, so it is a win-win situation for the politicians. It is not a coincidence that even Sinn Féin, which is to some extent outside the consensus, wants to get in on this debate as well, because they all realise that this is where the country is going culturally. In terms of social change, just imagine how different Ireland in 1969 was from what it is like today.

Q58 Sheila Gilmore: In terms of constitutional change by referendum, obviously Ireland has a history of this. Is there a danger of one of two things happening: one, a kind of referendum fatigue setting in; and secondly, is it possible to get the best decisions in that kind of format? There was criticism of putting even perhaps the referendum we had here this year on electoral reform in the way it was.

Dr Kissane: Okay. The first question was about referendum fatigue. In theory, the referendum is a constitutional safeguard that prevents elected Governments tampering with the constitution. They can only change fundamental things through a special procedure. That is the theory. But a constitutional safeguard assumes some distinction between constitutional and ordinary politics. When you have 10 referendums in one decade, that distinction breaks down, and it is breaking down, so the possibility of referendum fatigue is definitely there.

As to whether is it the best way to make decisions, we are talking about a country that has already had about 30 votes on specific constitutional amendments, with perhaps another 10 on the way over the next 10 or 12 years. It seems to me some of these decisions have been very good. For example, when the dominant Fianna Fáil Party in the 1950s and 1960s tried to change PR back to the British electoral system, one consequence would have been that they became even more hegemonic in the political system, and it was rejected. That would seem to be to be a positive outcome unless you were a Fianna Fáil politician.

On Europe, we were going along nicely on Europe until the Nice and Lisbon votes, and then all of a sudden it became apparent that you cannot have referendums on treaties that even people like me find it hard to read. It is not a normal political process, and it was captured by all these interest groups and these populists who basically said, "This is in the treaty," even though it probably was not. It is not always the best method of making decisions. The Irish Civil Service-I think it was after the Nice treaty debacle-wrote a White Paper suggesting that we remove or we add something to the constitution saying that for European treaties we will no longer have referendums.

There is a problem here because this is in some way an expression of popular sovereignty, that the people should have the right to veto what they see as a transfer of sovereignty to Brussels. If you take away from that, all of these treaties will just be accepted. As we can see, there are problems with Ireland’s relationship with the EU, so therefore these votes on Lisbon and Nice were not necessarily irrational.

Q59 Sheila Gilmore: Just out of interest, really, you suggested I think that the abolition of the second Chamber is one of the things that might be voted on quite soon. Is there a consensus that it should simply be abolished and that you would have a unicameral system?

Dr Kissane: Here again there is a danger in constitutional populism, that the people think the politicians are to blame. It is obvious that the Seanad, the second Chamber, is not doing good work, so you abolish it or you reduce the number of politicians in the lower Chamber. This will go down well with the public, but if the problem of the Irish state during the latest phases of the Celtic Tiger was an absence of checks and balances, why would you remove the Chamber that is there to provide the check and balances? The case for reform is obvious. The problem is we have been trying to reform it since the very start of the state. There have been 11 or 12 Government reports on the Seanad and none of them have reformed it. I think it will go down with the public, but again I am not convinced that it is a good decision. We have to have some degree of oversight. We just have to have it.

Q60 Mr Turner: Could I ask you, the Republic of Ireland is a country that developed out of a revolution, and as time went on we got to the point, in about the 1990s, where the revolutionary picture, and particularly the support for the northern Republicans, had washed away. It is now a normal-looking state, if you know what I mean. On the other hand, in Turkey where they also developed as a revolution, they seem to want to be both pro-secularist and pro-Islamic at the same time. They still have that problem, if you understand me. That is particularly true because of the consequence to Armenia, Armenians murdered in Eastern Anatolia. What is it that makes Islamic secularism different from what I would call "normal secularism"?

Chair: If you can relate that to the constitutional set-up.

Dr Kissane: It is a very deep and interesting question. Firstly, I would say, regarding Ireland, that in the 1990s when the Good Friday referendum took place, all of a sudden we were rich, all of a sudden we were secular, all of a sudden emigration had been reversed, all of a sudden the Catholic Church collapsed, all of these things allowed us to be much more relaxed and less defensive about our identity for the first time since the state was established. That is important.

The difference, of course, is that Turkey is-to use the colloquial phrase-between east and west, and at no stage up until very recently were the secular elites and the religious elites on an equal footing. Turkey never was a secular country; it was a country where the secular elite subordinated the religious elite and suppressed them when it could. The first independent constitution in Turkey-I think it was 1924-had Islam down as the state religion. There is a big Diyanet, Ministry of Religious Affairs, employing 70,000 imams to go around Turkey and speak in mosques. To some extent, until recently I think, their sermons were vetted by the state, so it is an ambiguous secularism to begin with. What has driven all this process about Islamic secularism and what is happening, is there is an intense elite competition between the people who are either descendents of or ideologically in tune with the goals of Atatürk, and feel threatened by Islam, and people who are acquiring huge economic power because of economic liberalisation and globalisation and are, therefore, in a position really to become the elite. This is really important: who are the elite? What is happening is that one elite is being displaced by another.

When we talk about constitutional issues, why was there this huge, big fight a few years ago about the presidency? All they were doing was electing a democratically elected Member of Parliament, who was from the AKP, as President. But when he attended state functions he was ignored by the army, other members of the secular elite, because this was seen as a bastion of secularism, the presidency. This is why it is very hard to disentangle these arguments about the courts from general issues about identity politics in Turkey. Why Turkey cannot get out of that when in some ways everyone knows that if you are Turkish you are Islamic to some extent. If I were living in Turkey and I was a Christian I do not think I would be accepted as being Turkish.

Since 1982, after the military coup, through the school system they have been promoting this Turkish/Islamic synthesis, on the assumption that it was better for people to value their religious background than get involved in class politics. It is not as if there is not an element of consensus potential, or it is not as if there are articles in the constitution to do with secularism that the AKP wants to get rid of, but there is this very deep process of elite competition.

Why this is not going to end, to some extent the EU has let Turkey down. The EU is no longer the focal point for what they are doing in terms of democratisation and reform. At the end of the day, the big advantage of the EU was that it provided a focus point, an anchor, for this debate about democratisation, which is very deep in the society. Now the constitution is the anchor for that, but it has been decoupled from the ambition to become part of the European Union, in my view. They might still go to meetings, they might still say they want this, but do they really believe it? Turkey is moving in a different direction geopolitically and this shift, which to my mind is going to enhance its power in the world, then means that the kind of secular, westernised population probably wonders, "Where are we really going?"

There is another point, which is Turkey has become-one point.

Chair: Yes, quickly.

Dr Kissane: Turkey has become totally globalised, but globalisation is strengthening both sides because it is giving economic power to the Islamic or the AKP movement, but it is also making other people completely westernised in their culture, especially young people. You are going to have this cultural politics indefinitely.

Chair: Bill, that was a tour de force. Thank you very much. I knew a little about Turkey but I now know a heck of a lot more. Thank you so much also for your insights into Ireland. It is very much appreciated.

Dr Kissane: Fine. Thanks for inviting me.

Chair: Enjoyed your session, Bill and Sophie, and Peter who has now left us. I think it has been an enthralling morning. Thank you all very much indeed. Thanks for coming.

Prepared 21st July 2011