What is to be done?

Iceland provides a critical recent example of how a citizenry can draft a constitution and how politicians will take unprecedented steps to thwart the will of the people.

The Icelandic Constitution Convention of 2010-2013 is crucial both for the innovative ways in which the public was involved but also because public participation in the process can be shown to have made a causal difference to the resulting text. The quasi-natural experiment setup of the Icelandic constitutional process makes it possible to compare the textual output of expert groups and that of the non-professional politicians on the Constitutional Council who crowdsourced their work to the larger public. 

During the financial crash of 2008, Icelanders recognised their system of government, built on oligarchic control of natural resources and reckless financialisation, needed to change. Protests erupted outside the Reykjavik parliament with, among many others, demands for a new constitution to be drawn up by the people, not by politicians or their lawyers. Since 1944, when Iceland adopted what was essentially a translation of the Danish constitution from 1849, Parliament had consistently failed to keep its promise of constitutional reform. 

With the default of all three of the country's major privately owned commercial banks and under constant public pressure, the Icelandic parliament took four key steps toward a new constitution. First, it appointed in 2009 a seven-member Constitutional Committee comprising mostly academics from a range of fields, including law, literature, and science, thus implicitly acknowledging that the constitution is not exclusively, and not even principally, a legal document, but primarily a social compact, a political declaration that supersedes ordinary legislation by virtue of the fact that the people are superior to Parliament. 

Second, the Constitutional Committee was tasked with convening a National Assembly in 2010 at which 950 citizens, drawn at random from the national register, defined and discussed their views of what should be in the new constitution.

Third, the Constitutional Committee organised a national election of 25 Constitutional Assembly representatives to draft the constitution, a task that the Constitutional Assembly, renamed Council, completed within the four months assigned to it in 2011 by producing a partly crowd-sourced constitution bill, fully consistent with the conclusion of the National Assembly, and passing it unanimously with 25 votes to 0, a rare feat. The elected council members included five professors, three other academics, four lawyers, and so on. 

Fourth, Parliament held a national referendum on the bill in 2012 where the bill was accepted by 67% of the voters and its individual key provisions were approved by 67% to 83% of the voters.

The bill was drafted from scratch, based on the 1944 constitution. The text was made public week by week for perusal by the public that was invited to offer comments and suggestions on an interactive website specifically designed for that purpose. Hundreds did. Many thoughtful and constructive comments were thus received from the public. An open invitation to all made it needless to invite representatives from special interest organisations to express their views, a clear departure from common parliamentary practice which has been, and remains, to invite special interest groups to influence, or even draft, legislation of interest to them.

The bill reflected a broad consensus in favour of change. It is, by design, firmly grounded in and fully consistent with the conclusion of the 2010 National Assembly, virtually without exception. This helps explain the 67% support for the bill in the 2012 referendum. The bill embraces continuity plus new provisions aiming to

• Strengthen checks and balances to limit executive overreach

• Secure equal voting rights, i.e., 'one person, one vote'

• To stem over-representation of rural areas in Parliament

• Ensure national ownership of natural resources, mainly to uproot the Russian-style handling of Iceland’s natural resource wealth, especially the fisheries

• Promote environmental protection

• Increase freedom of information

Some of these provisions were feared by Icelandic politicians, owing their careers to unequal voting rights and the umbilical cord binding them to financial elites, the major beneficiaries of the deeply discriminatory management of Iceland's natural resources.

The constitutional bill was firmly anchored in the will of the people because (a) the bill fully reflects the declaration of the 2010 National Assembly at which every Icelander 18 years or older had an equal chance of being invited to take a seat and (b) it was approved by 2/3 of the voters in a national referendum against the wishes of much of the discredited political class.

As time passed, support in the Icelandic Parliament for constitutional reform weakened. The opposition emerged gradually. The political parties showed no interest in the Constitutional Assembly election in 2010 which the Supreme Court decided to annul on flimsy if not illegal grounds. Never before has a national election been invalidated in a democracy. The political parties did nothing to promote the bill before the national referendum held by Parliament in 2012. The bill was an orphan. It fell upon ordinary citizens, including former members of the Constitutional Assembly whose legal mandate had long since expired, to present the bill to the voters. Only after the bill was accepted by 67% of the voters, did its opponents turn openly against it, waving objections that no one had raised before concerning provisions that Parliament, rightly, had seen no reason to put on the ballot. Their criticisms, sometimes dressed up in legal jargon, were political – and irrelevant because they appeared too late.

All along, Parliament had moved slowly. When the Constitutional Assembly, renamed Council, after four months of work, had delivered its bill to Parliament, the minority in Parliament used an unprecedented filibuster against the bill for months. The government majority in Parliament shied away from breaking the filibuster by applying the 'nuclear option' permitted by law, which also would have been unprecedented. The filibustering minority complained that it did not have enough time to consider the bill and delayed the referendum from June until October 2012. After the referendum, where turnout was 49%, Parliament asked local lawyers to polish the language instructing them not to change in any way the substance of the bill. The lawyers, led by an official at the Prime Minister's office, tried to turn natural resource provision upside down in favour of the vessel owners, but to its credit the parliamentary committee in charge restored the original language of the clause proposed by the Constitutional Council. At the eleventh hour, Parliament asked the Venice Commission for its reactions, and found them easy to incorporate into the bill. The bill was now ready for a vote in Parliament to ratify the outcome of the 2012 referendum.

As the vote approached, private citizens opened a website inviting MPs to declare their support for the bill. One by one, 32 MPs (a majority) declared support. If Parliament allowed a secret ballot, the bill might have been stranded. In an open ballot, however, members of the government majority that had launched the constitutional reform process could not permit themselves to vote against the result of the referendum. On the last day of Parliament, before the parliamentary election in 2013, violating procedure, the Speaker failed to bring the bill to a vote. The election brought the old rascals—the main opponents of the bill—back to office. With 51% of the voters behind it, the new government shelved the constitution bill, some of its members referring to the 2012 national referendum as an irrelevant 'opinion poll'.

At present, the most democratic constitution bill ever drafted is being held hostage by self-serving politicians in the clearest possible demonstration of a fundamental principle of constitution-making – namely, that politicians should neither be tasked with drafting nor ratifying constitutions because of the risk that they will act against the public interest. The conduct of Parliament in Iceland is seen by many as a direct affront to democracy. Events like some of those described here—with six Supreme Court judges annulling a national election on flimsy if not illegal grounds, Parliament deliberately disrespecting the overwhelming result of a constitutional referendum—are simply not supposed to happen in a democracy.

There may be a lesson or two also for the UK in the Icelandic constitutional saga as it has played out thus far. A national assembly comprising a statistically significant sample of the electorate is a crucial initial step toward a democratic constitution because political parties tend to serve as interest organisations for politicians or other groups. For that reason, politicians should not be allowed near the constitution making process because of the danger that they will try to hijack the process for their own benefit. Large countries like the UK should have no trouble with extending an open invitation to the public to participate in the process through crowd sourcing as long as appropriate sampling techniques are used to compile a representative collection of comments and suggestions offered by the citizenry.

A form of Direct Democracy is alive and well, right now, in Europe. Direct Democracy was introduced at federal level in Switzerland in 1848, although in some Swiss cantons (states in the Swiss confederacy model) forms of Direct Democracy have been used since the fourteenth century. 

In Out of the Wreckage, George Monbiot writes: 

In a survey of the forty rich nations, the Organisation for Economic Cooperation and Development found that, on average, 42% of people express 'confidence in government'. But in Switzerland, which came first, the rate was 75%. In the seven years since the previous survey, confidence levels had risen there by 12 points, while they had fallen by an average of 3% elsewhere.

What possible reason might Swiss citizens have to vest so much confidence in their public institutions? It is simple: to a greater extent than the people of any other nation, they exercise control over them. The great constitutional question - where should sovereignty reside, in parliament or the people? has been decisively resolved in favour of the people.

The overall effect, as the Swiss diplomat Simon Geissbühler reports, is to encourage public engagement with politics, high levels of political information, and reasoned debate. Still more important is the sense of political ownership the system fosters: people perceive that government belongs to them. This is how trust in politics is earned.

The origins of Switzerland's modern system of Direct Democracy with formalised polls and frequent referendums lie in an experimental phase of democracy in the 19th century when Switzerland was surrounded by monarchies on the European continent that showed little enthusiasm for democracy. 

Several Direct Democracy mechanisms can be used at federal level in Switzerland. The mechanisms fall into two broad categories: referendums and initiatives. Each mechanism can be used to achieve different results and has different design features. 

Popular initiative

The popular initiative gives citizens the right to propose an amendment or addition to the Constitution. It acts to drive or launch a political debate on a specific issue. For such an initiative to come about, the signatures of 100,000 voters who support the proposal must be collected within 18 months. The authorities sometimes respond to an initiative with a direct counter-proposal in the hope that a majority of the people and the cantons support that instead. The Federal Council and Parliament will recommend whether the proposal should be accepted or rejected. For the proposal to be accepted a double majority is needed. If it is accepted, new legislation or an amendment to existing legislation is normally required to implement the new constitutional provision.

Optional referendum

The optional referendum allows the people to demand that any bill approved by the Federal Assembly is put to a nationwide vote. In order to bring about a national referendum, 50,000 valid signatures must be collected within 100 days of publication of the new legislation. If the majority vote no - against a  change to a law - the current law continues to apply. This type of referendum was introduced in 1874. Since then, 180 optional referendums have been held.

Mandatory referendum

All constitutional amendments approved by parliament are subject to a mandatory referendum, i.e. they must be put to a nationwide popular vote. The electorate are also required to approve Swiss membership of specific international organisations. A double majority, meaning the consent of a majority of the people and of the cantons is required to amend the country's constitution.

○ The legal framework enables all Swiss citizens over the age of 18 to vote on how the country is run.

○ Switzerland has a population of 8.6 million people, of which 25% are foreign nationals, spread across 26 cantons.

○ The Swiss electorate are called on approximately four times a year to exercise their democratic right and vote on an average of 15 federal proposals. 

○ The fundamental principle of Direct Democracy is that all citizens take part in decision-making and there's a strong respect for minorities.

○ There are three ways to cast a vote: by postal voting (the most popular option), at the ballot box, and, in some cantons, electronically (e-voting). 

○ In the canton of Appenzell Innerrhoden, the People's Assembly (Landsgemeinde) still chooses its representative in the Council of States by a show of hands. 

The Swiss model

○ The government, also called Federal Council, is the executive power. It is composed of seven Federal Councillors from several Swiss political parties, which are elected by the Federal Assembly every four years and share the duties of a head of state. 

○ Federal Councillors rotate and every year one takes on the role of president.

○ The Swiss political scene is dominated by four main parties: the Swiss People's Party, the Social Democrats, the Liberals and the Christian Democratic Party. In recent years, the Green Party has emerged, as well as a small number of minority parties.

○ In 2016, a popular initiative to give everyone in the country a basic income made it to the referendum stage, but was rejected by 76.9% of voters. A popular initiative proposing six weeks of holiday a year for workers was also rejected at the polls.

○ In 2017, Swiss voters were called to vote in referendums on three occasions. The average overall turnout out was around 45%.

○ Individual issues can attract greater turnout, however. Nearly 55 percent of voters took part in a referendum calling for compulsory television licenses to be scrapped, with the majority rejecting the move that would have cut funds to the national broadcaster.

○ Popular votes can be held up to four times a year. The Federal Council decides a couple of months in advance which proposals will be voted on and releases the dates of the votes even earlier. Currently all the dates have been fixed from now until 2034.

Given the numerous opportunities for using Direct Democracy in Switzerland, it is perhaps not surprising that the variety of issues on which referendums are held is extremely wide. Since 1990, referendums have been held on such diverse issues as:

○ Banning the building of nuclear power stations

○ Building new Alpine railways

○ A new federal constitution

○ Controlling immigration

○ Abolishing the army

○ Joining the United Nations

○ Shortening working hours

○ Opening up electricity markets

○ 10 more things you need to know about Swiss Direct Democracy