On Monday, the Labour Party published the report of the Commission on the UK’s Future, chaired by Gordon Brown: A New Britain: Renewing Our Democracy and Rebuilding Our Economy. The report focuses on changes that can be delivered within a single parliamentary term, and therefore discusses only those issues which the Commission regards as most pressing. Alongside proposals for improving standards in public life, and for new constitutionally-protected social rights, the core of the report focuses on the territorial constitution, making a number of recommendations for reform of devolution across the UK, underpinned by a further proposal to replace the House of Lords with a new, elected second chamber – an Assembly of the Nations and Regions. Notwithstanding the timetable set for these reforms, the proposals do not yet constitute Labour Party policy, and indeed a great deal of important detail is still missing. A process of consultation and detailed policy formulation will now ensue. Nevertheless, the report gives an insight into Labour party thinking on constitutional reform, particularly in relation to the territorial constitution, on which the rest of this post will concentrate.
The Commission makes various recommendations for extending and strengthening devolution across England – largely focusing on powers relating to economic development and regional inequality, which are themes which run through the entire report. Although the “starting principle is that the powers we set out … should be available to all parts of the country”, this is qualified by the provisos that there must be capacity and capability to use devolved powers appropriately, powers must be delivered at most appropriate levels, and there must be proper accountability and scrutiny; all of which suggest that the current piecemeal approach to English devolution will continue. Similarly, there are no proposals for new institutions of devolution in England, and it will continue to involve only executive rather than legislative powers. There is, though, an intriguing proposal for a new, more streamlined mechanism to allow devolved authorities to procure local legislation at Westminster, as well as a new “constitutional requirement that the political, administrative and financial autonomy of local government should be respected by central government”.
The report has much less to say about new powers for Scotland, Wales, and Northern Ireland. In relation to Scotland, the headlines are a proposal to amend the foreign affairs reservation to allow the Scottish Government to enter into agreements with international organisations in relation to devolved matters, and some rather unclear proposals to extend its borrowing and taxation powers. For Wales, there are proposals to extend power in relation to probation and youth justice, falling far short of calls for the complete devolution of justice and policing powers, although there is a commitment to consider any proposals for further devolution in Wales that are made by the Independent Commission on the Constitutional Future of Wales. On Northern Ireland, there is nothing of any substance, beyond a platitudinous desire to see devolution restored and strengthened.
Some of the proposals in relation to the powers of the devolved nations are extremely specific, and appear to be driven by particular policy objectives rather than considerations of principle – such as recommendations for clarifying the responsibilities of the Scottish Parliament to promote improved pay and working conditions. This approach is at odds with the report’s very first recommendation which is that there should be a new constitutional statute setting out the “political, social, and economic purposes of the UK as a Union of Nations” in order to guide “how political power should be shared”, in place of the “shopping list” approach which has determined the allocation of powers to date. Other proposals – such as a call to enhance the privileges of the Scottish Parliament and the Senedd or for greater decentralisation to local government in Scotland – deal with matters which are already within devolved competence.
In fact, the most significant proposals in the report in relation to the devolved nations relate not to new powers, but rather to inter-governmental co-operation and the constitutional entrenchment of devolution. In both respects, the report recommends a substantial juridification of aspects of the territorial constitution that have hitherto been governed by political rather than legal mechanisms, and which as a consequence have been regarded as weak points in the devolution arrangements – particularly during the Brexit process and beyond.
Curiously, the report’s proposals in respect of intergovernmental relations appear not to have noticed the important reforms that were introduced earlier this year. Hence, some of the changes it calls for – replacement of the system of Joint Ministerial Committees; a dedicated secretariat; and an improved dispute resolution mechanism – have already been introduced, albeit there is considerable room for scepticism about how much difference they have made in practice. Nevertheless, the report’s recommendations do go further than these existing reforms.
The two key proposals in this area are, first, that the inter-governmental machinery should be put on a statutory footing (and should include representatives of the English regions as well as the devolved nations) and, second, that there should be a new “solidarity clause” – a legal obligation of co-operation on the UK and devolved governments, regional government in England and possibly also local government. More generally, the report argues that greater devolution all round will change the context of inter-governmental relations for the better: “instead of a centralised, unitary state which deals badly with self-government in the devolved nations, the UK will become one which has to cooperate with devolved power over all of its territory.”
The report does, however, remain vague on how all this would operate and be enforced. For instance, what exactly would a duty of co-operation entail, and what would happen if it were breached? And how would this interact with recommendations for a legal statement of the purposes of the UK and statutory recognition of the principle of subsidiarity? The devolved governments could be forgiven for fearing that a solidarity clause would bear more heavily on them than on the centre and, along with the recommendations that there should be a “constitutional requirement to rebalance the UK’s economy” and more “Joint Policy Initiatives” in areas of common interest, that these proposals might threaten their capacity for autonomous decision-making (as indeed would the recommendations in relation to the protection of social rights).
In constitutional terms, the most interesting part of the report is its attempt to resolve the conundrum of constitutional entrenchment in a system dominated by the sovereignty of the UK Parliament. The starting point is the proposal to re-enact the guarantees of permanence of the devolved institutions and recognition of the Sewel Convention currently found in the Scotland Act 2017 and the Wales Act 2017. There are apparently no proposals to extend these guarantees to Northern Ireland, although it is difficult to see any justification for not doing so, at least in relation to the Sewel Convention (a statutory guarantee of permanence is more problematic, and arguably unnecessary, given s.1 of the Northern Ireland Act 1998 and the requirements of the Belfast/Good Friday Agreement). As regards the Sewel Convention, the new provision would make clear that the consent requirement applies both to legislation on devolved policy matters and to legislation altering devolved competences (although the proposal appears to be limited to primary and not delegated legislation – a matter of significant current controversy as between the UK and devolved governments). Sewel would also become an absolute rule, with no qualification that it only applies “normally”.
The real constitutional innovation here, though, is in relation to enforcement. Upholding the basic principles of the territorial constitution – along with protection of a list of other specified constitutional statutes – would be a key task for the new second chamber. Taking inspiration from the Parliament Act 1911, which retains the House of Lords’ veto uniquely in relation to Bills to extend the life of Parliament, the new Assembly would be able to reject Bills which affect protected statutes, including Bills which violate the Sewel Convention or seek to abolish the devolved institutions in Scotland and Wales without popular consent. In addition, in case of dispute as to whether a Bill triggers this safeguarding procedure (i.e. whether it “relates to” a protected statute), the Assembly’s presiding officer would be able to make a reference, probably to the Supreme Court, for an authoritative ruling on the matter. This safeguarding procedure would itself be one of the protected provisions, thus ensuring a type of manner and form entrenchment for constitutionally important statutes.
This is a creative constitutional solution which appears to offer significantly enhanced protection for devolution. In particular, it would mean that the UK Government would lose its current effectively unchallengeable power to determine whether devolved consent is required for UK legislation and whether or not a refusal of consent should be respected. On closer inspection, though – and leaving aside the very large question-mark over the deliverability of a reformed second chamber – the protection is potentially weaker than it appears in two respects.
First, the second chamber may but would in no sense be obliged to exercise its safeguarding power in relation to legislation affecting devolution (or any other protected statute). In other words, notwithstanding the reformulation of the Sewel Convention as an absolute rule, it would still be open to the Assembly to decide that it is justified to legislate in relation to devolved matters without devolved consent in particular cases. The fundamental weakness in the Sewel Convention over the past five years has been the fact that a majority of MPs and peers have been willing to do so on an increasingly regular basis – and have apparently not been all that interested in the precise justifications for setting aside the Convention. Whether a reformed second chamber would be any more interested in protecting devolved autonomy remains to be seen, and will depend to a large extent on its composition. On this latter question the report is also very vague: the Assembly should be elected on a regional basis, at a different time and on a different principle to the House of Commons and should be much smaller than the existing House of Lords, but otherwise the details remain to be determined. If the devolved nations were to be represented in proportion to their population, they would remain both individually and collectively in a minority position – only around 15% of the total. The explicit reconceiving of the purpose of the second chamber as a territorial assembly might help to sensitise its members to issues affecting the territorial distribution of power, as could the suggestion that elected national and regional leaders should be able to participate in the Assembly. But the overwhelming majority of its members would still be likely to represent the English regions where devolution would continue to be a very different beast to devolution in Scotland, Wales, and Northern Ireland.
The second problem is that the safeguarding power of the new Assembly turns out not to be as strong as is first presented. Whereas the House of Lords currently has a power to delay most legislation for one parliamentary session and an absolute veto over Bills to extend the life of Parliament, the report proposes that the new second chamber would lose its delaying power for ordinary Bills, and in relation to protected statutes (other than Bills to extend the life of Parliament), it would be possible for the House of Commons to override the Assembly’s veto. The report suggests that this might require, for instance, a two thirds majority vote in the Commons or the reintroduction of the Bill after a General Election. Again, though, given the radical asymmetry of the UK’s population, neither mechanism offers the devolved nations any real security.
The final point to make about the report is simply to note what it omits. Although it is critical of the process by which the UK Internal Market Act 2020 was enacted without devolved consent, there are no proposals to reform the way in which it, and other related internal market legislation, operates. Similarly, there is no mention at all of the Northern Ireland Protocol – the single biggest threat to the restoration of devolution in Northern Ireland. And the report also has nothing to say about secession rights in Scotland, again a major contemporary threat to the territorial stability of the United Kingdom.
All in all, this report contains some interesting ideas, but it seems unlikely to be the final word on the future of the UK’s territorial constitution.
Professor Aileen McHarg, Durham University
(Suggested citation: A. McHarg, ‘The Future of the Territorial Constitution under Labour? The Report of the Commission on the UK’s Future’, U.K. Const. L. Blog (8th December 2022) (available at https://ukconstitutionallaw.org/))