Can Labour do constitutional reform again?

By: Austen Morgan

With the Conservatives in political difficulty, Labour doing well in the polls, but a hung parliament possible in autumn 2024, policies emerging from the opposition will be heavily scrutinized.

In December 2022, Labour’s Commission on the UK’s Future, chaired by the former Prime Minister Gordon Brown, was published after nearly two years: A New Britain: renewing our democracy and rebuilding our economythe 155-page report being launched (despite cancelled trains) in Leeds and then Edinburgh.

Totally missing from the report – and this is a constitutionalist critique – is the concept of the territorial integrity of states (including the UK), a principal of international law contained in the 1945 United Nations charter.  Instead, the document is filled with sniping at Boris Johnson, across the not-to-be-forgotten despatch box of the House of Commons. 

The Brown report, I submit, might be less of a constitutional blueprint enmeshed unusually in economic analysis, and more an early casualty of Sir Keir Starmer’s positioning for a general election and a possible coalition government.

The Commission, 2021-22

The Brown commission comprised 16 members: there was one MP (Anneliese Dodds) and one peer (Lord Murphy of Torfaen); most members came from local government; Shaheed Fatima KC from Blackstone chambers was the leading lawyer.

The report – to be frank – reads like a new labour manifesto, most of the drafting having been done by a senior policy advisor, Scott Dickson, a parliamentary staffer: ‘Our aim must be to put power and resources in the hands of communities, towns, cities, regions and nations, to make their own decisions about what will work best for them…In this report we set out a vision of a New Britain [not UK?] founded on a relationship between our government, our communities, and the people.’

Though the report recognizes that ‘national politicians as a class are today the least trusted people in Britain’, Gordon Brown foregrounds a national conversation (again), on constitutional reform.  There is also to be legislative consultation, most definitely an elite activity for lobbyists.  Significantly, all this is to be done ‘without recourse to a referendum’.  The report proposes ‘a comprehensive New Britain Act’ for a first-term Labour government (though a more gradualist approach appears to have been added to the conclusion on the eve of publication). 

All this was tried unsuccessfully, in 2007-10, so why will Sir Keir Starmer succeed in the 2020s?  

Recommendations

The report’s 40 recommendations are categorized: first, some constitutional principles, but also new economic and social rights; second, the dispersal of economic powers through England; third, entrenching devolution in Scotland, Wales and Northern Ireland; fourth, a council of the nations and regions (replacing joint ministerial committees) and a separate council of England; fifth, cleaning up politics; and sixth, replacing the house of lords with an assembly of the nations and regions.

All this is highly aspirational…and obviously unrealistic given past experience.  It is also illusory…private corporations claim to run off mission statements, but does anyone believe political power starts with values and moves on to policy followed – after a national conversation – with implementation? 

One big idea

There is one big idea in the report – the abolition of the house of lords – but the replacement by an assembly of the nations and regions is ineptly argued, because of the avoidance of the concept of federalization of the UK.

Devolution

Variable devolution all round in 1998 was designed to buy off separatism, and the breakup of the UK state.  In July 1997, Lord Sewel, a Scotland Office minister, had said: ‘I appreciate that some members of your Lordships’ House are sincerely of the view that devolution poses a threat to the Union – that it is somehow the first step on the slippery slope to separatism.  If I believed that I would oppose devolution with as much vigour as I now support it.’

In 2007, Alex Salmond, as leader of the Scottish national party, became first minister in the Holyrood parliament, and was succeeded by Nichola Sturgeon in 2014, who shows no sign of moderating her separatism. It is frankly illogical, after Westminster statutes in 1998, 2012 and 2016, to suggest – as this report does – that further concessions on devolution will somehow solve the very serious Scottish question of UK politics: namely the demand for a second referendum.

House of Lords  

The reform of the House of Lords – which comprised historically hereditary peers (mainly landowners), Anglican bishops and, from the late nineteenth century, law lords – has been pursued unsuccessfully since 1911.  True, we got life peers (a Cromwellian idea) in 1958.  And true, Lord Irvine got rid of the hereditary peers in 1999, less a cohort of 90 plus two (the Earl Marshal and the Lord Great Chamberlain – which sounds like Gilbert and Sullivan!).

The House of Lords remains unelected.  It has been so criticized since 1911.  But the weakness in the idea of an elected House of Lords, is the fact that it would challenge the primacy of the House of Commons – which has been a democratic institution since as recently as 1929.

The Brown report (recommendation 37) favours the abolition of the House of Lords.  This has not come as welcome news to most of the existing life peers (plus the 92 hereditary peers), including the Labour peers – who are represented in the shadow cabinet by Baroness Smith of Basildon and Lord Kennedy of Southwark. 

True, the report goes on in recommendation 37 to specify an assembly of the nations and regions, which is later described as ‘a signature aspect of our proposals’. Such an assembly is premised, I believe, on the federalization of the UK.  Scotland, Wales and Northern Ireland already exist constitutionally.  But England has no such existence.  It is not even a jurisdiction, like Scotland and Northern Ireland.  The question of the regionalization of England – which bedevilled the 1973 Kilbrandon commission – is not really addressed by Gordon Brown and his colleagues. 

The report admits as much in the conclusion: ‘Our proposed new Councils of the Nations and Regions and of England can only be created when Labour is in government and at this stage the most important task is consultation on the legislative basis which will be needed, and the powers and status of the new independent secretariat.’

Conclusion

Abolition of the house of lords, whatever of its merits, is dead or dying, as a result of the labour peers.  An assembly of the nations and regions (which I favour) is stillborn in this report, because of the failure of the commission to prioritize the territorial integrity of the UK state in the face of Scottish (and to a much lesser extent, Irish) nationalism.

Austen Morgan is a barrister in London and Belfast.  He is the author of: Pretence: why the United Kingdom needs a written constitution, to be published by Black Spring on 18 April 2023.

The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed in this article are the personal views of the author and not those of The Constitution Society.