A New Britain: Renewing our Democracy and Rebuilding our Economy: Report of the Commission on the UK’s Future (aka the report of the Brown Commission on the UK’s future)

As part of a series of posts charting different aspects of the UK’s potential territorial break-up, here are some notes on one recent intervention designed to stop that happening: the report of the Brown Commission (available here). In this discussion, I’m focusing principally on the recommendations for Scotland and Wales (which can be seen in the executive summary), but also on the unconvincing suggestions (buried deep in the report) as to how the devolved settlements will be constitutionally protected from the so-called ‘Parliamentary Supremacy’ of the UK Government in Westminster.

Here’s a short quote to give you a flavour of the introduction:

We start from basic strengths built on the ingenuity of the British people.  Our universities are among the best of the world.  Our inventiveness – from Tim Berners Lee’s development of the World Wide Web, to recent cutting edge advances in vaccines – is world beating. Our research institutions are admired in every continent.  And English is the most used language in more countries than any other. (p.4)

This is not an isolated incidence of British exceptionalism. Further on in the report, there are other examples of jingoism run wild. For instance, on page 54 we are told that ‘Britain contributed to nearly every great technological advance of the last three centuries’ and that ‘our genius for innovation has not dried up’. Fortunately, most people have probably just read the executive summary and been spared this wince-inducing codswallop.

The newspaper headlines following publication of the report focused on the recommendation that the House of Lords should be replaced with ‘a reformed second chamber, an Assembly of the Nations and Regions’. The promise implicit within this democratic step is that there will be something better for Scotland and Wales than either the status quo or independence, but note in the paragraph quoted below that self-government is only to be entrenched in Scotland despite Wales also having its own parliament and government. Conceivably, the second ‘and Wales’ was removed at the stage of haggling/horse-trading over the final draft of the report.

We have accepted the challenge that those who believe in the UK as a positive force have to and will offer a better and more trustworthy prospectus for change than independence. The alternative we put before the people of Scotland and Wales is better than either costly and destructive independence and a stagnating status quo: change within the United Kingdom that can entrench self-government in Scotland whilst improving shared government across Britain and we believe that our recommendations offer not just faster and safer change, but fairer change. (p.13)

Further down the same page an aim, ‘To entrench the constitutional status of self-government across the nations of the UK’ (p.13), is put in a bullet point, which makes the exact composition of the above paragraph even stranger. On the next page, there is a rather ambiguous statement about the Welsh Government’s independent Commission on constitutional issues (still ongoing as I type), which comes close to implying that Welsh Labour can be relied on to ensure that the outcome is not opposed to cooperation across the UK, which on the one hand can be taken as saying that they won’t end up advocating independence but might also be seen as a hint that even existing commitments to a Welsh legal jurisdiction should be dropped (see more on this below).   

In Wales, our proposals strengthen self-government for a new era, but we are mindful that the Welsh Government has set up an independent Commission to make recommendations on constitutional issues. We know that we can rely on the Welsh Labour Government to publish its Plan for Wales that employs to the full the powers of the Senedd and, at the same time, maximises the benefits from co-operation across the United Kingdom. (p.14)

In the executive summary, there is a list of recommendations to strengthen the powers of self-government in the devolved nations, but these are subdivided by separate headings for Scotland and Wales (and also Northern Ireland). There are 6 separate points (numbered 16-21) for Scotland and only four (numbered 22-25) for Wales (and, indeed, only two for Northern Ireland, but one of these notes that devolution has to be consistent with consent and the principles of the Good Friday Agreement, indicating that the context is different from that of Wales and Scotland). There are three pairs of points for Scotland and Wales that are the same for both countries: 16 & 22 promise that the Sewel Convention (the convention that the UK government can only legislate on devolved powers  if the devolved parliaments give their consent) will be strengthened and protected from amendment by the new second chamber; 18 & 23 promise that Scottish MSPs and Welsh ASs will get same legal protections as MPs; 21 & 25 promise that both Scotland and Wales will get increased access to economic resources through the British Regional Investment Bank. The remaining fourth point (24) for Wales promises ‘new powers over youth justice and the probation service’, which while important hardly constitutes a major constitutional change. (The section on this proposal in the main body of the report is brutally condescending especially once you add in the unstated bits: ‘The other substantial difference between the Welsh and Scottish settlements remains the devolution of matters relating to justice and policing.  These have always been devolved in Scotland because of the separate Scottish legal system, and now are devolved in Northern Ireland.  Many in Wales seek the devolution of such powers [in fact, many seek the devolution of separate Welsh legal jurisdiction].  We understand this aspiration [but have no intention of meeting it], and [instead] believe the next UK Labour government should embark upon the devolution of youth justice and the probation service). Scotland is promised (17) ‘enhanced status internationally in devolved areas’ and two further changes which seem more like impositions than extended powers: (19) ‘enhanced local control’, which in practice means elected mayors; and (20) ‘enhanced opportunities for co-operation to mutual benefit’, such as ‘strengthened cooperation with the UK Government to address the challenges Scotland faces today’, which might in practice mean less rather than more devolved action. It’s not clear who exactly these offers are supposed to sway. Constitutionally protecting the Sewell convention, if possible, would have significant consequences – for example, it would have prevented the Johnson Government’s Internal Market Act. However, as discussed below, there is no convincing detail in the commission report as to how the convention could be protected from amendment and so in effect, I would argue, it’s an empty promise.  

In any case, even if readers have already missed the hints that cooperation will be strengthened, recommendations 28-31 hammer this point home with a lack of subtlety:

28. There should be a ‘solidarity clause’, a legal obligation of co-operation between the different levels of Government and institutions across the UK.

29. The UK need a new and powerful institution to drive co-operation between all its governments – a Council of the Nations and Regions.

30. The structures of co-operation and of central government and Parliament should respect and recognise those areas of decision making that are England only.

31. Joint policy initiatives in areas of common interest, from climate change to security, should embed co-operation between different levels of government.

What’s interesting about these objectives is that if you were really invested in achieving them, you would advocate a brand new federal structure for the UK rather than trying to bolt them on to the antediluvian and not inherently democratic existing constitutional structure of the UK. Similarly, the idea of constitutionally protecting the Sewell Convention is a classic fix:

The mechanism which we recommend is based on the existing, seldom acknowledged, protection built into the Parliament Act 1911.  That Act removed the House of Lords’ power to reject legislation, and replaced it by a power to delay, but was subject to one exception.  The House of Lords can still reject a bill to extend the term of a Parliament, so that a government cannot simply keep voting itself into office by postponing a general election.   (The House of Lords can of course agree, as it did during the Second World War.)  Paradoxically enough, therefore, the unelected House of Lords acts as a safeguard for democracy in the United Kingdom.  We recommend that the new chamber retains this power, and that the power should be extended in one area only – to legislation relating to certain other constitutional statutes, which we refer to here as protected constitutional statutes. (p.140)

However, what is the real purpose of this fix? The protections sought could also be included in a new bespoke federal structure but obviously that possibility has been rejected (one assumes the commission did actually consider it!?!). The very next paragraph reveals that the key underlying principal of not just this mechanism but this whole report is to protect ‘Parliamentary Supremacy:

The second chamber would have an explicit power to reject legislation which related to a narrow list of defined constitutional statutes.  The effect of this would be a form of what is called “entrenchment”, that is to say making a particular statutory provision more difficult to amend the ordinary law.  Giving this power to the second chamber of Parliament sustains the principle, at the core of much of the UK constitution, of Parliamentary Supremacy. In the end, it must be Parliament which decides which laws can be passed or not passed.  For certain laws, however, the second chamber of Parliament will have a special role. But this must be carefully defined and hedged round to ensure that it does not simply become a political battleground with the second chamber seeking to usurp the role of the Commons. (p140)

To ensure that the second chamber doesn’t just usurp the role of the Commons, it is proposed that if the second chamber contemplates using this safeguarding power, the question should be referred to court: ‘most likely directly to the Supreme Court, for an authoritative judgement on whether the constitutional protection powers are engaged’ (p.141). We are further told that:

The Supreme Court is already well able to make such judgments; for example it has a well-developed jurisprudence on whether devolved legislation “relates to” a reserved matter.  Involving the courts in this way before the new power could be exercised would be a safeguard against the second chamber adopting an improperly political approach to powers which are constitutional in nature. (p.141)

I’m not sure that in practice these cases over devolved legislation have been entirely satisfactory. For example, it seems to me (in a week in which the UK Government have just presented a particularly threadbare justification in court for using a Section 35 order to overturn the democratic will of the Scottish Parliament) that the process is just as open to the Government taking an improperly political approach to try and circumvent the second chamber by pursuing matters aggressively in the courts. In short, this isn’t actually a constitutional protection as such but a decision to give the Supreme Court a greater role in the political process (which may be unavoidable but it doesn’t seem to me to be an ideal starting place for constitutional reform).

The following paragraphs set out at length how the primacy of the House of Commons will be preserved under these procedures. People can read the passages for themselves but at the end of this section we are told: ‘We see this approach as a way of gaining for the UK many of the benefits of a written constitution while continuing to uphold the principle of the supremacy of Parliament, as there is still no law which Parliament cannot change’ (p.142). I personally can’t help feeling that the best way of gaining the benefits of a written constitution would be to have a written constitution, which by its nature would mean that parliament does not have supremacy. To suggest we can have both is just ‘cakeism’. We are further told that, ‘It is our view that these recommendations could all be delivered and have impact within a single Parliamentary term, and without recourse to a referendum’ (p.144). My first thought on reading this was that the whole thing has been set up to avoid the need of a referendum. The suggestion is that all the recommendations in the document can be actioned within a single term of parliament and not just those concerning the replacement of the House of Lords with a second chamber that has this ability to protect certain constitutional safeguards. It is simply not clear to me how the latter could be actioned so quickly, given that the exact composition of the second chamber is not even sketched out in this report. Neither is it clear to me, that even if this was achieved under a Labour government, why subsequent governments wouldn’t be able to overturn it. It would be much more difficult to overturn a written constitution legitimated by a referendum. Moreover, it’s not clear how this second chamber/supreme court fix would command public respect and support (beyond disinterested acquiescence). Unless, of course, the net effect of these changes is to give central government more power over the devolved governments, in which case the two main British political parties might want to keep all this in place. To cut to the quick, these are really meant as measures of control rather than genuine offerings to supporters of devolution. Nevertheless, I think there is little chance of these recommendations being implemented even by a Labour Government with a huge majority. This is because such a government would probably have more power from using (or abusing) existing powers. To be fair to Labour, in June they confirmed that they still aim to abolish the House of Lords if elected, but only after appointing new peers. So, we shall see what version of these ideas they put forward in the coming General Election.

Update (15 October 2023): An article in today’s Observer, ‘Labour to omit funding of social care reform from manifesto and scale back Lords plans’ by Toby Helm and Michael Savage, states that Labour are not now intending to replace the House of Lords in its first term:

Several Labour sources have also made clear that previous pledges by Starmer and his team to abolish the House of Lords and replace it with a fully elected second chamber would no longer be a first-term commitment. Instead, in its first years in power, the party would focus on other legislative priorities such as its “new deal” for working people that would ban zero-hours contracts and end qualifying periods for basic rights such as sick pay and parental leave.

Less than a year ago, Starmer and his team appeared committed to moving towards a fully elected second chamber in a first term. Now several shadow cabinet sources said there was a recognition this would cause huge constitutional upheaval and take up too much parliamentary time.

Instead, senior figures say Labour would look at a more limited set of changes, such as capping the number of peers, increasing the powers of the body that oversees appointments to prevent inappropriate people being given peerages, and possibly getting rid of the 90 or so remaining hereditary peers, in a first term. A fully elected second chamber would remain as a longer-term objective.

This article treats the issue as though the only significant element is replacing the unelected Lords with an elected body, rather than that the proposed Lords reform was actually at the centre of a package of constitutional reforms designed to solve the ongoing constitutional crisis and, as discussed above, the problems created by the UK government repeatedly ignoring the Sewel convention and legislating for areas that are devolved. If the people making this decision have even thought about it at all, I’m guessing they are hoping that Labour end up running not only the UK government but the Welsh and Scottish Parliaments too. However, this won’t be the case at least until the next Holyrood election in 2025 and, even then, it’s unlikely for a number of reasons. However, regardless of such considerations, postponing these reforms is a disastrous idea that will lead to crises that they wont be able to control.

In practice, this decision drives a coach and horses through the Brown Commission report, which is now pretty much dead in the water. It might still come back into play in a hypothetical second term for Labour but that’s getting a long way ahead of where we are now. As I discuss above, I don’t think the Brown recommendations would solve the problem in any case. However, it would have been good to see the plan amended because its weaknesses were acknowledged, whereas it looks like what’s happening here is that it is simply being dropped because the people making the decision don’t even understand what the problem is that it’d designed to solve.