Reflections on the report of the Brown Commission on the UK’s future

Economic and political devolution for England

The report ties together the economic and the constitutional, linking two critical observations: that the UK is the most geographically unequal large country in the developed world, as well as the most centralised, certainly outside of the devolved nations. If the UK is to be economically successful – and it has not been over the last decade or more – it must, the report argues, harness the potential of the whole UK, and not simply the prosperous South East. In order to do that, a programme of radical economic and political decentralisation in England is an early recommendation.

There is more to this than “levelling up”, because it involves decentralisation of political power, linked to some fairly dramatic changes at the centre and in the constitution. Regional economic development is to be driven locally, with new powers for Metro Mayors and local government, leading to a much more decentralised England. Initially, powers relating to economic development will be in what has been described as a ‘taking back control’ bill, but further devolution could be through locally promoted Westminster legislation, rather as in the 19th century. The report says that the scope for executive devolution within England to suitable local authorities – or groupings of them operating at the right strategic level, and with appropriate governance – is in principle as wide as in Wales or Scotland.

Change at the centre of the UK

The programme of economic development and devolution will be supported by an obligation on governments to promote economic equality, and a new constitutional principle of subsidiarity, to be underpinned by new, constitutionally protected, social rights. These are intended to give substance to a legislative statement of the purposes of the UK, setting out what the central state guarantees to its citizens.

An important argument here is that the UK’s increasing overcentralisation of power in Westminster and Whitehall is linked to a misunderstanding of the notion of parliamentary sovereignty; it is too often interpreted by Ministers as meaning that government – which can secure a majority in the House of Commons – can do more or less anything it wants. If the law forbids something, then a parliamentary majority can be used to change the law. This can lead to unconstrained and irresponsible use of ministerial powers, of which the government of Mr Boris Johnson[CC1] , the report argues, is an exemplar. His administration repeatedly pushed the boundaries of ministerial power against parliamentary control, being twice overturned in the Supreme Court, and disregarded the constitutional convention which protected the autonomy of the devolved legislatures. It was also of course heavily criticised for disregard of the ministerial code of conduct. What Peter Hennessy called the “good chap” theory of government, where ministers can be expected to obey behavioural norms that are not codified in enforceable legal form, has been tested to destruction.

This leads to two significant sets of recommendations. First, proposals on what might be called cleaning up politics, including replacing the prime minister’s adviser on ethics with an independent body answerable to Parliament and enforcing a code of conduct for ministers which is not simply, as today, a statement of the prime minister’s expectations. A new anti-corruption agency is also canvassed, as well as a ban on virtually all second jobs for MPs.

More radical still, however, are proposals for replacement of the House of Lords by a new, elected, second chamber, to be called the Assembly of the Nations and Regions. The method of election and the precise composition of the chamber is a matter for consultation, although some detailed proposals are made.

Where this differs from other Lords reform proposals is in its focus on the function of the second chamber, which is to act as a constitutional guardian, with the power to reject legislation which relates to certain, defined, constitutional provisions. This goes with the grain of parliamentary sovereignty, but nevertheless puts (narrowly defined) constraints on the otherwise unlimited power of the House of Commons to pass whatever legislation a majority will support. Today, the only legislation which the Lords can reject is a bill to extend the term of a Parliament. Under these proposals the second chamber will have the power, but not of course the obligation, to reject legislation which relates to a list of constitutional statutes. To secure its primacy, however, a Commons override, with possibly a 2/3 majority, is also suggested.

The aim is to protect certain constitutional provisions from amendment or override solely on the basis of Commons majority. One obvious example is the Sewel Convention, under which Westminster does not legislate on devolved matters or on the powers of the devolved legislatures without their consent. This has a statutory basis already, but the Supreme Court ruled the formulation was sufficiently broad for it to be a matter of political not legal enforcement. Instead, under these plans, Sewel will be legally enforceable, and any legislation which sought to override or disapply it would be subject to the potential veto of the second chamber. This is a way of securing what is sometimes called ‘entrenchment’ constitutional provisions, consistently with the principle of the supremacy of Parliament.

Scotland and Wales, and intergovernmental cooperation

Additional devolved powers are proposed for Scotland and Wales (and indeed Northern Ireland when devolution is re-established), including devolving the administration of job centres to integrate job search and training more fully, and formal international personality, allowing devolved governments to enter into the membership of international organisations, etc, without contravening the foreign affairs reservation in the devolution legislation. But the focus of the report is less on powers, which are already very wide, but more on relationships, which have never been wholly smooth and recently dysfunctional. The constitutional protection role of the new second chamber is intended to safeguard and entrench devolution, as well as other key constitutional principles, so that it will no longer be possible for the government at Westminster to behave as the Johnson administration did in implementing Brexit. Rather than recommend the devolution of a number of policy areas discussed (such as migration), what is recommended is enhanced and effective cooperation.

A number of areas for cooperation are listed, but the key recommendations are about the incentives and structures of cooperation. Borrowing from the EU Treaty provision, the report recommends an obligation of cooperation between the UK’s different governments, and replacing the present intergovernmental arrangements with statutory set of Councils of the Nations and Regions, involving the different levels of government across the UK, including in England. The secretariat which supports these structures for cooperation will have an independent status, as well as powers of convening and raising issues with the Assembly of the Nations and Regions.

What next?

Labour’s plans will intrigue some, but no doubt disappoint others, especially those looking for further Holyrood powers as a step closer to independence. But Brown’s Commission was focused on the future of the UK. A great deal of detailed work will have to be done to turn these recommendations into legislation, and whether these are introduced depends on the results of an election a year or more away. But change is in the air.