The report of Labour’s Commission for the UK’s Future relaunches themes on devolution and constitutional reform that its former Prime Minister tried to pursue in government. Richard Parry discusses how it might impact on Keir Starmer’s ultra-cautious pursuit of power

When Keir Starmer announced Labour’s new commission in December 2020, initially not confirming that Gordon Brown would be full in the chair rather than advising, it was possible to see trouble down the road. Now we see the 150-page report by a range of Labour and trade union figures from throughout the UK (advised by former civil servants Jim Gallagher (who contributed his own blog on 7 December that explains well where the Commission was coming from) and Philip Rycroft, with Scott Dickson credited with the lead on research and drafting). It is in large part Labour’s take on levelling-up (economic hubs, another heave on civil service dispersal) alongside a grappling with intractable subjects like second chamber reform and institutional devolution that reserves detail (sometimes painfully – ‘we support fiscal devolution, where relevant and beneficial. Local decision makers are considering taxes and levies at a local level. It is for the Shadow Chancellor to make any announcements in due course’ (p94)). Media presentation of the report on 5 December allowed Labour to emphasise anti-sleaze and English regional development rather than devolution and constitutional reform.

The proposals bear the imprint of Gordon Brown’s perspectives while in office – the codification of some of the practices and conventions of government, and devolution as a device to entrench Labour’s position in Scotland and Wales. So we have the concept of a ‘constitutional statute’ including some economic and social rights, and a ‘solidarity clause’ – ‘a legal obligation of co-operation between the different levels of government across the UK’ (p16). ‘The UK is a group of nations, peoples and places which have come together in a shared Parliament at Westminster to provide together what can be better provided together than separately’ (p68); ‘it is crucial for both the people of Scotland, and to ensure that the current devolved powers are working effectively, that both of Scotland’s governments work in co-operation rather than manufacture conflict for political purposes’ (p110). With the weight of England in the UK so heavy, the concept comes over as the concertation of policy set at the UK level and the denial of the potency of political nationalism. Survey data now allow only the underwhelming statement that in Scotland and Wales ‘British identity is still meaningful for a majority’ (p45).

‘More devolution’ in the report is limited; nothing to give Scotland and Wales more secure access to the proceeds of any higher tax rates they set, and no more than ‘consultation over updating Scottish capital borrowing… any changes should retain the limits on what borrowing can be used for and be consistent with UK-wide fiscal rules’ (p110). Devolved parliaments would gain the right to enter into international agreements in their areas of competence, which might ease the consequences of Brexit. Jobcentres are proposed for devolution, Wales is offered youth justice and the probation service, and English local authorities more stable funding streams that could easily be compromised at Treasury will.

Continuing the approach of Brown’s Constitutional Reform and Governance Act 2010 at the end of his premiership (a very limited outcome of his original constitutional ambitions), the report says that ‘it is time to put the relationship between ministers and civil service on a formal statutory footing’ (p90). There would be new institutions on ethics and anti-corruption, and a ban on second jobs for MPs, ‘with few exceptions for employment required to maintain professional memberships, such as medicine’ (P130) – no mention of lawyers. After Boris Johnson’s attempt to bring ethical matters back under ministerial discretion, these are easy wins, but there is no mention of fixed-term parliaments or devolved rights over referendums.

A lot of attention has been given to the suggested replacement for the House of Lords, the ‘Assembly of Nations and Regions’. The title implies that, typical of international federal practice, territory and history should have weight alongside population in its set-up. But we are told nothing about whether the other three nations should be over-represented in relation to England, or English regions in relation to London and the South East; just that there would be 200 members ‘elected on a regional basis’ (p142) which might imply multi-member constituencies and surely prompt calls for election by a proportional representation system. Its electoral cycle would be different from the Commons, a threat of mid-term trouble for governments. As the SNP has declined to nominate life peers, the new chamber would reinforce its Westminster presence, an uncomfortable consequence for Labour.  

The new chamber’s delaying powers ‘should apply only to a very limited range of constitutional issues, and should only be exercised if the Supreme Court agrees the legal basis for it exists’ (p141). Just how these ‘protected constitutional statutes’ are to be defined, and how an ultimate Commons override might be secured, are discussed hesitantly, with an explicit written constitution rejected. 

The new Assembly is to have a role on supervising intergovernmental arrangements, which includes a ‘Council of the Nations and Regions’ with an independent secretariat, and the right to veto the disapplication of the Sewel Convention by legislation in a political case. The convention itself – which prevents Westminster from legislating on devolved matters without devolved consent - under a new statute would ‘not be restricted to applying ‘normally’ but should be binding in all circumstances’ (p103). These proposals would help to correct the inequality of respect within the system, but Labour itself when in office found it convenient to bypass intergovernmental structures that will always tend to be instruments of pressure on the UK centre.

Keir Starmer has been vague on whether the House of Lords would go during a first Labour term, and in practice its combination of powerlessness and patronage opportunities is so convenient that it may have a lot of life in it. A cryptic reference – ‘we leave for consultation the question of whether, as now with the House of Lords, individuals who are not in Parliament but appointed to Ministerial posts should account for themselves to the second chamber’ (p143) – highlights the present ability to bring outsiders into government via a peerage, used by Brown himself even for non-Labour figures.

Twice in Gordon Brown’s career Labour’s devolution policy has been set by cross-party exercises. Devolution in 1997 was based on the proposals of the Scottish Constitutional Convention. The Smith Commission in 2014 was the product of a ‘vow’ by party leaders brokered by Brown. In both cases, English-orientated considerations within Labour were suppressed. Modalities set for Scotland were then extended to Wales, and both nations ended up with weighty parliaments and governments. Now Labour is on its own, and its policy-making behaviour suggests extreme caution in doing anything that might upset the smooth inheritance of the UK office it sees as within its grasp.