Crowdsourcing a British constitution: lessons from Iceland

In the wake of the financial crisis, Iceland was seen by many as a beacon of democracy in its attempt to create a new constitution. Activist and author, Smári McCarthy argues that although some may have seen Iceland as a utopia, the efforts put into creating the new constitution have largely been squandered as those responsible for the crisis have returned to power.

(credit: vicmonotol, CC BY 2.0)

Four years ago, we had hope. We had just been through an economic collapse, the likes of which had never been seen – an enormous portion of the economy gone over the course of a few maddening weeks, and the aftermath had been an uprising that dwarfed the NATO protests of 1949. But after the embers cooled and the tear-gas cleared, the reconstruction began.

Unemployment was around 9% at the time, up from just over 1% a year previously. Companies were going bankrupt all around, debt was crushing families, and food queues were getting longer. It was something we’d never seen in Iceland. A country that had the year before ranked amongst the richest in the world, a world-class welfare state with strong investment culture that was taking Europe by storm, had now been reduced to the same unimportant volcanic wasteland as it had been in the 60′s, only with better infrastructure and more debt.

After the government collapsed, a new social democrat and left-green coalition took over. Amongst the many things they promised to do was work towards a new constitution. The shortcomings of the old Danish hand-me-down constitution was not the cause of the collapse, but they certainly didn’t help. The call for a new constitution was as much a demand for cleansing as it was for a reconstitution of our values.

Creating a Constitution from the Bottom-Up

The constitutional process was kick started with an assembly. One thousand people were randomly selected from the census for the task of creating the constitution’s guidelines. Over the course of a day, people young and old collected their ideas, their hopes and their dreams, on small tickets that then underwent a process of statistical aggregation and processing. This was done in multiple rounds: the first round collected very shallow but broad ideas, partially to get people’s creative juices flowing, partially to widen the space of thought. As the day went on, these ideas were processed down and filtered into a large set of statements about the contents of the future constitution.

The outcome – a large set of ideas and statements – was sent to a committee, which outlined a legal basis for these ideas. When they had processed all of this into a thick report encompassing vague ideas, strong statements, and legalese, an election was called: twenty-five people were to be elected for the task of merging legal tradition, popular sentiment, outlandish ideas and strong demands into a document that would be ours.

Five hundred and twenty-three. When one in every five hundred people in the country is a candidate, things get a bit weird. The anticipation in society was so great, candidates were everywhere. It became popular to run campaigns without advertising, but not everybody agreed. Some ran small spreads in the papers, made little handouts, or bought airtime. Others took what little attention they could get for free. The opinions varied too: some were more conservative, others more avant garde. Some spoke of reorganizing the entire structure of the country, others wanted to make only minor adjustments. A few wanted no changes at all.

Protesters outside the Alþingishús, home to the Icelandic parliament. (Credit: Haukurth, CC by 2.0)

The parliament was faced with a predicament. They could either repeat the election, which would have engendered anger from candidates and voters, reduced voter turnout, reduced faith in the process, and all with a price tag of over £1.2 million. Alternatively, they could scrap the entire thing. Of course they picked option number three: they scrapped the idea of a democratically elected assembly of twenty-five people, and instead politically appointed a council of twenty-five people. The people who would have won the election if the election had not been deemed a violation of the election laws were appointed to the committee. Disaster averted?

No cloud hung over the council when it convened in their assembly hall, the former offices of one of Iceland’s oldest newspapers. There, the group worked for three months on an agile schedule of discussion, deliberation, and publication. At the end of each week, a new draft constitution was released on the council’s website, and at the beginning of each week the council processed the hundreds of comments, ideas, proposals and complaints that had been made over the previous week.

Most of these ideas were taken into account, and come August there was a document of enormous importance ready to be delivered to the parliament. Delivered it was, with great pomp and splendour, after which the new constitution of Iceland was unceremoniously placed at the bottom of a very large pile of things to ignore, where it stayed for over a year.

A Country of Nepotism

It is hard to understand a process like this one without understanding the culture which begot it. Iceland is a fairly large island nation in northern Europe, where the average summer temperature is just over 10°C, the main industry has been fishing for the last several hundred years, and until the early 1900′s, starvation was a thing that could actually happen. The traditional form of housing, earthen turf huts made from layers of soil with wooden structural frames, slowly gave way to Danish colonial architecture in the 17th, 18th and 19th centuries, and then converted to concrete slabs in the 20th.. Despite this, the last turf hut was abandoned in the 1960′s.

From such humble beginnings, Iceland developed from being a third world nation to a global leader over the course of half a century. This kind of development has been seen elsewhere, but generally it is stifled somewhat by corruption, dictatorial rule, or diplomatic complexity. Here Iceland struck it lucky. The democratic tradition in the country is relatively strong, with a parliamentary tradition dating back to the year 930. Although it is relatively easy to argue that the country has been more or less controlled by about ten families for the last two hundred years, this control is mostly a result of strong connections, good opportunities, and other trappings of wealth, than any direct form of corruption. Iceland is not a country of bribery, it is a country of nepotism.

When countries develop rapidly, one of the side-effects is economic expansion. This may seem obvious, but it has a number of complicated and often unwanted effects, such as rapid increase of public and private debt, heavy reliance on few but large capital flows, and unanticipated jerks in currency value. As public works become larger, the expansion has greater effect, and if the tension grows too much, the bubble may pop.

As such, almost nothing that happened in Iceland was unpredictable, had anybody bothered to look at the historical figures. Yet, for some reason, when almost all of Iceland’s banks went bust in rapid succession in October 2008, almost everybody was surprised. 173 banking crises registered around the world by the World Bank between 1972 and 2008, and yet everybody was shocked.

Of course, there is a certain aspect of arrogance to it all. It is sometimes said that Iceland is a country of small kings. A starkly individualist nation of people who believe themselves to be competent at anything, Icelanders rarely take impossible for an answer. This works both to their advantage and disadvantage, as it mostly amounts to lack of adult supervision. Boom cycles become more adventurous, bust cycles become more horrific.

The Constitution Resurfaces

When the constitution finally resurfaced in the parliament’s constitutional and regulatory committee, its members were adamant about poking it. Although in broad strokes it was hard to argue with, the committee went back and forth on language, scope and wording of individual articles until they were blue in the face.

It was late 2012 before the parliament called for a referendum on six questions which were deemed to be able to resolve the supposed issues of contention that remained. The first question was general:

Do you wish for a new constitution to be based on the recommendations of the constitutional council?

The rest were topical:

Should natural resources be relegated to the commons?
Should there be a state church?
Should all votes have equal weight regardless of constituency?
Should a percentage of the population be able to call for referendums?
Should it be possible to vote for people rather than parties?

The result was a resounding yes: yes to all of the questions, even the one about the state church – Iceland being one of very few countries in the world that still has such a thing. A total of 73% of voters saying they wanted the new constitution as proposed by the council.

But the referendum was non-binding.

Two days after the election, another skeleton was uncovered. The constitutional and regulatory committee had appointed a committee of three lawyers to go through the proposed constitution one more time to clear up legal language. Their mandate was to make only linguistic changes, but no changes in content. The list of content changes they made was several pages long, including limitations on the transparency and free speech statutes.

(Credit: Matito, CC by 2.0)

Again this went to the parliamentary committee, that called many witnesses and specialists to discuss the changes. Another round of deliberations led to all of the content changes proposed by this new committee to be reverted. It only took a few months.

At this point, the detractors of the process were grasping for straws – there were any number of things that still needed to be checked. It would be irresponsible, they said, to adopt a new constitution without the Council of Europe’s Venice Commission having its say on the matter.

Throughout this absurd process, the tedium did not go unnoticed.

An “Expensive Opinion Poll”

Two days before parliament adjourned for an election break, Birgitta Jónsdóttir, an MP for the Movement, was summoned to a meeting of the chairmen of all of the political parties represented in the parliament, where she was informed that the constitution had been shelved, but they had arrived at the decision to propose a change to the constitution that would allow changes to be made over the next parliamentary term with more ease. How much ease? Instead of the parliament having to agree to it, then be dissolved and a general election be held, after which the parliament would confirm the changes, a 2/3 majority of the parliament followed by a referendum would be enough.

The kicker though would be that 40% of eligible voters would have to vote yes. This simple change would make staying at home equate to saying “no”, giving non-participation a meaning, and simultaneously eliminating voting secrecy. Birgitta protested at the meeting, and then exposed the plan on the internet.

Despite public outrage at the plan, it went through swiftly and mostly effortlessly. No committees were formed to discuss the proposal, no panels of lawyers were convened. The Venice Commission was not polled on the issue. All of the democratic safeguards required for constitutional changes were suddenly unnecessary and cumbersome. There was no talk of irresponsibility.

After the fact, social democrat MP Valgerður Bjarnadóttir publicly lamented that the government’s fear of the traditional powers had destroyed the process. The Independence Party had from day one been opposed to the process and worked against it at every step. Sometimes this meant filibustering, sometimes this meant wasting time in committees. Sometimes this meant making absurd statements in the media, such as Birgir Ármannson’s claim that the referendum had been an “expensive opinion poll” and that the will of those who didn’t vote had to be taken into account – a gesture that earned him the moniker “the ombudsman of uncast votes”.

The Independence Party’s fears were justified. Founded around an independence movement, it quickly became home to a number of strong families that have had their hand in the governance of the country since. Although the occasional star from outside the elite rises through their ranks, the steadfast belief in the party’s ineffability – and that of its leaders – had created an internal culture of entitlement. The core ideology of the party was captured quite eloquently at the party conference in 2008, when Ólafur Hannesson proclaimed: “We are the nation!”

The nation, as far as they saw it, did not need a new constitution. Their will was done. The parliamentary session of 2013 ended with the new constitution of Iceland being killed.

A Caricature of Democratic Engagement

The 2013 parliamentary election was in many ways a caricature of democratic engagement. Eleven parties ran nationwide, mostly fragmenting the left. The Social Democrats saw a breakaway party, Bright Future, taking a third of their support. The Left-Green party was decimated, many of its supporters fleeing to what they saw as more liberal grounds – a move largely attributable to a flurry of authoritarian decisions and ideas made in Ögmundur Jónasson’s interior ministry, including censorship of gambling and pornography and preemptive police investigations without probable cause.

The Icelandic Constitutional Society had been founded right at the very beginning of the constitutional process, in order to try and provide support for the process from civil society. The society took no stance regarding the content of the constitution as such, but simply advocated for awareness of constitutional issues and the creation of a new constitution. Almost four years later, its members were looking frayed. Many of the members of the Constitutional Council joined them to found a separate organization in the run up to the referendum to politically advocate for the particular proposal that had come from the council. SaNS, as the organization was called, successfully lobbied for a yes vote in the referendum, but after the hijinks that followed, many of its members were still unsatisfied.

(Credit: Bryan Pocius, CC by 2.0)

The Democracy Watch was one of the eleven political parties, their platform primarily focused around getting the new constitution passed. Lead by leftist economics professor and co-author of the proposed constitution Thorvaldur Gylfason, the party unsuccessfully campaigned for putting the constitution back on the agenda. Instead, the electorate went for a parliament consisting of six parties. In increasing order of seats awarded: the Pirate Party, Bright Future, the Left-green Party, the Social Democratic Party, and the Independence and Progressive parties, which each got seventeen seats.

Blaming the Firefighters

Before the crash, Iceland was governed by a coalition of the Independence Party and the Progressive Party. In 2013, five years after the crash, we would be again. The lessons learned during the crash were forgotten, the hope that we had for the reconstitution of our society had been lost. But that was not all that was lost.

Iceland’s recovery had given people around the globe hope. We had bounced back from the financial collapse faster and more decisively than any other country, we had done so while retaining our democratic values, while conducting experiments in statehood, and while only accepting minimal austerity measures. Iceland had done alright. With unemployment down to around 4%, and public finances showing a balanced budget, it was clear that the Social Democratic and Left-green coalition government had done very well during their tenure. It took them a while to get things under control, and they made some painful sacrifices along the way, but they managed to recuperate from one of the most spectacular systemic failures in history. It cannot have been easy.

For this reason, Iceland was seen by many as a utopia. It wasn’t, really, but people can always hope. We had hope, and we were working towards the utopian ideal, even if we knew it could never be reached.

Somebody proposed an analogy: a building catches fire, and the fire brigade, after having been stuck in traffic, arrive fairly late. They do what they can, and manage to save some valuables from the building, and eventually extinguish the fire. A panel is called to investigate the fire, and it is determined that the cause of the fire was arson, and that the entire fire brigade was incompetent to deal with it. The fire brigade is fired, and the arsonists hired in their place.

Four years ago, we had hope. Four years later, our hope was lost. And our utopia, it was lost too.

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Please note: This article originally appeared on ConstitutionUK, and gives the opinion of the author and not those of Democratic Audit or the London School of Economics and Political Science. Please read our comments policy before posting. An English version of the proposed Icelandic constitution can be found here. The shortened URL for this post is: https://buff.ly/1dUMfKo

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Smári McCarthy is an information activist, free software developer and author. He has worked globally on issues of democratic participation, information security, access to information, civil liberties, and social and economic justice. He invented Liquid Democracy in 2007, worked with Wikileaks in 2009-2010, and is a core developer of Mailpile. He co-founded the International Modern Media Institute (IMMI), the Shadow Parliament Project, the Icelandic Digital Freedoms Society, the Constitutional Analysis Support Project (CAST) and the Icelandic Pirate Party. He currently works at ThoughtWorks on defending the free Internet.