Editors’ note: The blog has asked constitutional lawyers to review the main party manifestos ahead of the May elections, drawing out key constitutional proposals. We begin with Professor Keith Ewing of King’s College, London who reviews the Labour Party manifesto published this week. You can read the other contributions in this series here.

I

The compelling journey towards Scottish independence continues to gather pace. Yet the Westminster parties and their allies are fumbling in what are likely to be vain efforts to divert or derail a train that is heading surely in one direction, with only a few stops on the way. It is now not implausible to think that the journey to independence will be completed long before HS2 (the new high-speed rail link), not least because of Labour’s extraordinary proposal to give quasi-constitutional status to Austerity.

For the constitutional lawyer, Labour’s manifesto is thus dominated by the constitutional implications of Labour’s conversion to Austerity, as well as the fall-out from September’s referendum, the outcome of which was much closer than most people appear willing to concede. If fewer than 200,000 voters had voted the other way, it would have been goodnight and farewell to the United Kingdom; in other words, it was too fragile a majority for those committed to the union to feel either comfortable or vindicated.

In contrast to earlier Labour manifestos of recent years, it is difficult to find any unifying theme in manifesto 2015. For New Labour and its progeny, the big constitutional moves were made in 1997, and what we have now are constitutional proposals that are designed to consolidate changes already made, or which are largely responsive to the political agendas of others: the SNP on powers for Scotland; the Tories on fiscal prudence on the one hand and human rights on the other; and the Coalition on electoral law and the ‘Gagging Act’.

II

Beginning with Austerity, Labour’s most eye-catching/eye-watering manifesto commitment relates to reducing the deficit, and the so-called Budget Responsibility Lock it proposes to introduce. Every new manifesto proposal is ‘paid for’; every Labour budget will cut the national deficit until there is a budget surplus; and every budget will have to be independently verified by the Office for Budget Responsibility (OBR), to ensure that it does have the effect of cutting the deficit. Having surrendered one major economic decision (interest rates) to the Bank of England in 1998, Labour thus now proposes that the Budget will have to be approved by another non-elected body, in this case the OBR.

The OBR was created by George Osborne, with a statutory duty to ‘examine and report on the sustainability of the public finances’. In seeking to give quasi-constitutional status to Austerity, Labour are now proposing that the OBR should have an even more elaborate role in the process of government, in the sense that the Office will be required not only independently to verify that every Labour-led budget will have the effect of reducing the national debt, but also that all major parties will have their manifesto commitments audited by the OBR. The foregoing suggests that there will be an additional continuing role in government for the OBR, even if the government finances are in surplus.

The implications of this seem to me to be quite extraordinary, and to raise questions about just how carefully all this was thought out:

• A prospective governing party is proposing to submit itself to scrutiny and it seems a veto by a non-elected public body on a fundamental question of government – namely the administration of the nation’s finances. This will require procedures to be established for the timely submission of the draft budget to the OBR, and more importantly to resolve disagreements between the OBR and the Treasury. The procedures will also have to clarify the extent of the OBR’s veto and the circumstances in which the budget will have to be rewritten to the satisfaction of the OBR. It will then be necessary to consider how these procedures are to be formalized and how transparent they are to be in their operation. Will they be embedded in legislation, creating a statutory obligation, binding on future governments?

• It is one thing, albeit a curious thing, for a prospective governing party to undertake to submit its proposed budgets to an external agency for verification and approval. But it is something different altogether for a governing party to LEGISLATE to require ALL (major) political parties to submit their manifesto commitments to scrutiny by a STATE agency. Quite apart from the chilling effect that this would have on policy development and manifesto commitments, what would happen if a party REFUSES to submit its manifesto for analysis by the State? Labour is suggesting that this interference with party autonomy and electoral freedom will be obligatory and that it will be statutory. That suggests that there will be a sanction for non-compliance. What will it be? No right to participate in the election?

III

It is at this point that a governing relationship for Westminster between Labour and the SNP is beginning to look even more attractive. Although Labour is currently embarrassed by the warmth of the unwanted embrace from its tartan suitors north of the border (as yet without border controls), Labour’s manifesto 2015 will provide a good starting point for post-election negotiations. What is being offered as an opening bid is the implementation of the Smith Commission recommendations, cobbled together after what historians in the future may refer to as the first or ‘warm up’ independence referendum of 18 September 2014.

But Labour also proposes more than Smith, with manifesto 2015 offering a Home Rule Bill ‘to give extra powers to Scotland over tax, welfare and jobs’. One way or another, income tax rates will be set in Scotland, and billions of pounds of social security spending will be devolved. But it is unlikely that this will be enough to satisfy all Scottish demands, there being no justification for devolving income tax but not all other tax raising powers, and no justification for devolving social security but not major economic activity. On its own income tax would be a poisoned chalice, as the canny SNP no doubt fully appreciates.

The Scottish Question predictably dominates other aspects of manifesto 2015, with Labour following David Cameron to West Lothian by accepting (rightly) that ‘it is time to consider how English MPs can have a greater role in the scrutiny of legislation that only affects England’: England also needs to prepare for Scottish independence. Labour’s preferred option, however, seems to be a committee stage for English-only MPs. But all this is tentative, and it is unlikely that change would take place very quickly, just as well perhaps given that a Labour-led government is unlikely to have a majority for the bulk of its business (on matters such as health, education and transport). It is tentative also because the question is to be examined by a ‘people-led Constitutional Convention’.

It is proposed that the latter will examine the other fall-out from the independence referendum, namely Labour’s proposals for an elected Senate of the Nations and Regions to replace the House of Lords. No time is wasted in discussing quite how this will happen: it has no chance of happening. House of Lords reform will forever be unfinished business. More critically, however, there is no discussion of how this great ‘people-led Constitutional Convention’ will be created, or of who will be in control. Will it be elected? Or will it be selected, and if so by whom? In which case where will be the democratic legitimacy? What about its mandate, and to whom will the Convention be accountable? The ‘people-led’ bit of this at least also looks like a non-starter.

Otherwise Scotland dictates much of the rest, including fuller devolution to Wales, largely to mirror developments in Scotland, though it is not clear how asymmetrical devolution can be fully corrected. Scotland is also the driving force behind the proposed English Devolution Act not for an English Parliament (we already have one, albeit one about to be dominated by the concerns of Scottish Nationalists), but to transfer money and power to English cities and regions. But there will be no attempt to revive the ill-fated Regional Assemblies, a still-born initiative of the Blair days. Instead we have the vote-winning promise of an English Regional Cabinet Committee to be chaired by the Prime Minister, to meet regularly and with civic leaders to be in attendance.

IV

Labour’s manifesto 2015 is not all about the toxic contradiction of Austerity and Scotland. Yet although important, much of the rest is likely to be overshadowed by these two great overlapping questions. Perhaps the most notable of the remaining commitments is the lowering of the voting age to 16 and 17 year olds – even here it is hard to get away from Alex Salmond and the Scottish referendum. This is to be accompanied by initiatives to improve the curriculum for citizenship education ‘so young people have the knowledge they need to play a full part in British society’. That is a need that could also be met by the proper teaching of history rather than teaching students how to be cod historians.

Otherwise there are proposals to tinker with the electoral laws introduced by the Coalition, including the individual registration of electors. It is feared that these changes will lead to the disenfranchisement of many citizens, and welcome suggestions to address this in manifesto 2015 include the block registration by universities and care homes. On the question of funding political parties, ‘Labour remains committed to reforming political party funding and taking the big money out of politics by capping individual donations to parties’. All very well, but this will further diminish the historic link between trade unions and the Labour Party, without also explaining how the gap in party funding is to be filled.

More welcome perhaps is the commitment to repeal the Transparency of Lobbying etc. Act 2014, which contains hard to justify restraints on free speech at elections. Designed presumably to protect Coalition MPs and political parties from hostile campaigning, the Gagging Act as it has become known imposes tight restraints on freedom of political expression. A de facto licensing system has been introduced for those individuals and organisations wishing to spend more than £20,000 on a national campaign, and those licensed are subject to a cap of £390,000, the restrictions reinforced by the criminal law. Designed to curb trade unions, students betrayed by tuition fees and NGOs, there is a complete and wholly unjustified exemption for corporations trading as newspapers.

It seems extraordinary that the Liberal Democrats supported something as transparently partisan as this, its introduction rightly drawing stinging criticism from the Joint Committee on Human Rights. It was nevertheless a useful reminder of how in the world of politics, there are few who are unwilling to sacrifice principle on the altar of self-interest. On the question of human rights, Labour predictably promises to protect the Human Rights Act 1998, while also banging the drum on special terrorism powers. Although there is no formal commitment to reintroduce control orders, there is a commitment to ensure that terrorist suspects are kept under ‘proper controls’, whatever hair that may split.

Less predictably, but dancing to another Tory tune, there is a commitment to ‘reforming rather than walking away from, the European Court of Human Rights’. This seems rather ominous, with no indication being offered of the type of reforms that are now thought to be necessary. The Coalition seems to have done a good job in bullying the Court in British cases, as reflected in the retreat on prisoners’ voting and the remarkable decision in Firth v United Kingdom. Labour needs to be pressed on what it means by ‘reforming the Court’, and how it proposes to do this. It needs equally to be pressed on its vague commitment to ‘make sure that access to legal representation, a cornerstone of our democracy, is not determined by personal wealth, but remains available to those that need it’.

V

So there we are: find the unifying theme if you can; find the democratic socialism if you are able (the Labour Party constitution improbably still proclaims Labour as a democratic socialist party). Unlike the bold manifesto 1997, manifesto 2015 offers patchwork constitutional change for the short-term, designed largely to wrong-foot opponents, and to secure short-term political ends. Labour continues to fail to learn the lesson of the Scotland Act 1998 – constitutional change cannot be structured for the benefit of one party. People are just too unpredictable and too clever for that.

True, there are some pleasing noises about Britain’s ‘tradition of liberty and the rule of law’, inevitable in the year of Magna Carta; but not so evident recently with detention without trial, control orders and the national identity register under Blair. And there is reference as well to Labour’s record of promoting ‘equality and opportunity for all’. But this is not the equality of Labour’s past, with equality being a word that has been transformed, now a synonym for eliminating discrimination rather than redistributing wealth from the few to the many. Eliminating tax breaks for ‘non-doms’ is not quite enough.

Finally, there is no commitment to repeal the Fixed-term Parliaments Act 2011, which looks like it is here to stay, its provisions about to be sorely tested after the May election, as may be the conventions about who gets to be invited to form a government and on what terms. But at the time of writing Austerity and Scotland are the questions certain to dominate the constitutional agenda.   Labour’s answers to both may not be enough, as the journey towards independence speeds up, and Saor Alba becomes more clearly visible and apparently more irresistible.

Keith Ewing is a Professor of Public Law at King’s College, London.

(Suggested citation:  K.D. Ewing, ‘Saor Alba and Austerity – The British Constitution and the Labour Party Manifesto’, U.K. Const. L. Blog (16th Apr 2015) (available at http://ukconstitutionallaw.org))