A constitutional revolution? The Brown report and Britain’s future
Don’t we have enough on our plates in Britain already? Do we really need to spend our time on the constitutional revolution proposed by the Labour Party’s Commission on the UK’s Future? Its recent report has 154 pages, 28 “exhibits”, 115 source notes, and 40 recommendations. The chair of the Commission, ex-premier Gordon Brown, calls them “the biggest ever transfer of power out of Westminster” and into the towns, cities, and nations of the UK.
Labour’s large lead in the opinion polls is one powerful reason for studying the reasoning and conclusions of the report. There are other reasons too. Sir Keir Starmer, whose responsibility it will be as Labour leader to take the findings forward, not only is a distinguished lawyer but his involvement in writing on constitutional reform goes back to the time before the Labour victory in the 1997 general election. In 1996 he co-authored a significant book on human rights with Francesca Klug and Stuart Weir. It is not yet clear how far Sir Keir is committed to all of the Brown Report’s proposals and whether some of them may be watered down by reactions and public consultations.
My personal and professional instincts are cautious but not dismissive, especially since it would be a mistake to rush to judgement without considerable further examination of ideas many of whose detailed practicalities are not given. For a start, the analysis in the Brown Report of the uneven economic condition of different parts of the UK and, arguably connected with this, the UK’s relatively low overall rate of growth, is relatively uncontroversial.
More open to debate is whether radical changes in the way in which the UK is governed hold the key to higher economic growth and greater prosperity in regions such as the North East and North West of England as well as in Scotland, Wales and Northern Ireland. Arguably the most detailed and important factual evidence in the report attempts to address this issue.
Nevertheless, a tactical problem for the Brown Commission is that since the 2015 general election, Conservative governments themselves have placed much emphasis on regional policy. The report acknowledges that there has been notable progress within some of the less prosperous parts of the UK. “Even now, before our new policy [of economic fairness between different regions and devolved administrations],” states the report (page 58), “there have been 116 clusters of innovation, many in manufacturing outside London and its surroundings. These include CleanTech (clean energy/green technology) clusters in: Edinburgh, Aberdeen, Glasgow, Manchester, Birmingham, Cardiff.”
The report continues: “Glasgow … allows us to think differently about the way ahead for our economy. Think of Glasgow not just as a historic centre for shipbuilding, but the new home of precision medicine based around its Living Laboratory…South Wales…as the new location for the cyber security industry… the North East, traditionally associated with coal and shipbuilding, as a world centre for large-scale green hydrogen production, establishing the UK hydrogen corridor linking the Tees Valley to Leeds.” The report also praises “Northern Ireland’s Nano NI. Built around nano-manufacturing and photonics, and able to exploit new opportunities in the healthcare, internet communications and cloud data storage sectors.”
Despite such encouraging examples, the report makes a strong case for more Research and Development funding to go beyond the “Golden Triangle” of London, Oxford and Cambridge and for more investment in roads and transport services in areas such as north eastern England. Indeed, it may reasonably be argued that an extra £4 billion in R and D funding directed to institutions outside the Golden Triangle, and even relatively cheap investments in transport infrastructure in the North East, would provide far better value for money than the extraordinarily costly HS2 rail project. In any case, HS2 will take years to finance and complete. Initially, it will shorten the already rapid London to Birmingham rail journey, leaving the needier North East at the end of the transport investment queue.
It is not surprising that populations in regions which formerly were centres of heavy industry, shipbuilding and mining should have felt aggrieved now that those sources of employment have largely dried up. But developments in party politics in Westminster, including the Conservative policy of regional “Levelling Up”, bring into question the assumption underlying the Brown Report that unfairness between Greater London and the North is irremediable without root-and-branch constitutional reform.
A further controversial Brown assumption is that increasing the powers of the devolved governments and legislatures will lessen separatist political tendencies in Scotland. The substantial increases he proposes in the powers of the Scottish legislature and executive to block Westminster are, if enacted, highly likely to backfire and to lead to further demands. It is unclear whether for Sir Keir discussions of increased powers for Scotland are seriously intended, or are presented in order to help tempt Scottish National voters back into the Labour fold at the next general election.
At the heart of the constitutional proposals is the replacement of the current House of Lords by a small elected upper house, partly on the model of the United States Senate. The suggested core role of the new UK Senate is to be a chamber in which the three devolved governments plus English regions are to be represented and enabled to protect their new rights.
Though the report does not include a recommended allocation of seats or an electoral system, it hints that disproportionately large numbers of Senate seats may be allocated to representatives of devolved nations, just as in the USA each state elects two senators regardless of its population. The rationale for the UK is that the role of the new upper house is to assure that the House of Commons will face a high bar if it wishes to remove powers granted to the devolved governments under the terms of the proposed new written constitution.
The most important proposed change is that the House of Commons should no longer be entitled to legislate with regard to devolved matters without the consent of the devolved legislatures, meaning the Scottish Parliament, the Welsh Parliament (Senedd Cymru) and the Northern Ireland Assembly.
This restriction on the sovereignty of the nationally elected Westminster legislature opens the door to conflict between the House of Commons and devolved administrations. To help smooth such conflict, the Brown Report envisages a further set of intermediary institutions, namely 1. “The Council of the Nations”, 2. “A Council of the UK”, and 3. “A Council of England” (page 119). “Further, [t]here should be a ‘Solidarity Clause’, a legal obligation of cooperation”.
If the House of Commons still wishes to remove or act in conflict with any power reserved under the terms of the planned written constitution to a devolved administration, yet another set of rules is to apply. The Westminster Senate, if it wishes to challenge the House of Commons for overriding a right constitutionally reserved to a devolved administration, must first take the matter to the Supreme Court to determine if the Court agrees that the right of a devolved administration does indeed fall under the category of matters devolved under the terms of the constitution. If the House of Commons then wishes to overturn the Senate’s vote on the matter, it must either vote to do so by a two-thirds majority or it must put its position to the vote in a subsequent general election. In this way, the principle of parliamentary sovereignty arguably is maintained, but is made harder to exercise.
Apart from constitutionally entrenching rights of the devolved administrations, the Brown scheme envisages that the Scottish Government could develop its own relationships with the European Union and other international organisations. Moreover, several of the other 40 proposals have potentially far-reaching effects.
Brown’s report proposes to give constitutional status to four “social rights”: health, schooling, poverty (anti-poverty rights) and housing (page 72). But it avoids the economic and legal implications of doing so. “Many detailed questions obviously arise, such as how much social assistance should be paid or what exactly does a right to free health care imply, but these can only be answered in practice by governments and parliaments responding to circumstances as they change. Creating such rights will undoubtedly create challenges in particular circumstances or situations, and further detailed work would be needed on the mechanisms for legal challenge. It is our intention to guide governments rather than put the running of services into the hands of the courts, and the formulation of the legislation should be designed to ensure that. In our view embedding them in the constitution is the most important thing, as it will entrench them against future threats of removal.” (Page 73.)
The prerogatives of local governments and elected mayors are strongly defended and localism extends to schemes such as “participatory budgeting” and citizens’ assemblies. Again, the question arises of how removing the “financial straightjacket on local government and metro mayors” is to be financed. The answer is “the principle of [financial] redistribution” and “substantial fiscal transfers from richer to poorer regions” (pages 94 101, and 70). Localism is to extend also to the right of local councils to compulsory purchase of unused land.
Strengthening anti-corruption institutions and assuring their independence from the government of the day is likely to command widespread support. This is a complex, intractable topic to which I have devoted much of my academic career. So here are four detailed comments.
First, statutes setting out standards of public behaviour are far easier to express as general aims than to incorporate effectively into law. At different points, the report offers statutory assurances, though it is not always clear how they could be made effective. For instance, “[a] well-designed statute would for the first time guarantee the permanence, impartiality and objectivity of the civil service. It would define who is accountable for what between ministers and civil servants. It would require the head of the civil service to ensure long-term capability within the civil service to meet the needs of current and future governments.” How and through what processes are “impartiality and objectivity” to be assessed, let alone “guaranteed”?
Second, political finance laws are a minefield. The report’s idea of making the existing ban on foreign financial contributions to British parties more effective by giving greater investigative powers to the Electoral Commission and by extending the legal definition of the term “foreign” simply will not work. This is because such payments often go to campaigning bodies which are legally separate from parties – pressure groups, newspapers and so forth. The effect of applying legal bans specifically to donations to parties and declared candidates for electoral office is often to re-channel donations to “offshore islands” of political parties.
Third, the proposal in the report to give official status to the so-called Cabinet Manual, devised in summary just before the 2010 general election and completed after the election, deserves to be controversial. In my opinion, it illustrates the dangers of innovations arguably driven without sufficient public discussion by academic pressure groups and some senior civil servants. In the process of setting out established constitutional practices, it seems to have justified innovations, especially regarding procedures for the sitting Prime Minister’s resignation following an election producing a House of Commons without an overall majority for any single party. This issue deserves to be carefully re-examined before the next general election.
Fourth, the Brown report makes the claim that central government is more corruption-prone than local government and, consequently, that decentralisation of executive decisions will make for cleaner government. Historically, the dangers of corruption apply to different levels of government and to officials as well as elected politicians. However, political corruption studies have tended to show that local politics has been especially corruption-prone.
Finally, I have two questions. In the event of a Labour government or Labour-led coalition, the complexities of the root-and-branch constitutional programme summarised in the Brown report will be great. Given the likely press of other business, how much attention would Sir Keir Starmer, if elected to No 10 Downing Street, be able to devote to this programme? Conversely, how best can the present Conservative Government tackle current and future constitutional issues when so much else is happening?
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