Gordon Guthrie: Brown vs Dewar – The Labour Commission on the UK’s Future

With the publication of Labour’s Commission on the UK’s Future it is worth contrasting the approach that Gordon Brown and his colleagues have taken with the very successful devolutionary legacy of Donald Dewar.

The Scottish Parliament is one of the most powerful subnational parliaments in the world. But the Scottish state hardly changed in 1999 on the immediate introduction of devolution. The levers of power on Secretary of State Donald Dewar’s desk in 1997 were still there when he became First Minister in 1999.

The Scotland of the 1980s and 1990s, one of the poorest parts of the UK, became the 2nd richest by 2022 because Donald Dewar systematically limited, restricted and bound the government of Scotland that he ran. Donald Dewar, First Minister, had less freedom of action than Donald Dewar, Secretary of State, because of the Scotland Act 1998 that he, Donald Dewar, guided through Westminster. This is not the Brown approach.

Dewar went into the first Scottish Parliament election as the Secretary of State in a UK government with a solid majority of 179 in the Commons and came out in a coalition government at Holyrood. The Scotland Office had derisory levels of scrutiny at Westminster. Holyrood was the exact opposite.

The barriers between the Home Nations and the Empire were more porous before the great collapse of the 1960s, and Scottish devolution strongly resembles the development of government in the white Dominions of the racially coded Imperium. The administratively devolved Scottish Office was restored in 1885 after its suppression in 1745, and in 1939 received a massive transfer of capabilities and civil servants. The post-war administration had tremendous successes in terms of housing builds and rural electrification, but the push for legislative devolution came from its democratic short-falls. The post 1999 trajectory remains the same, incremental transfer of powers in 2005, 2012 and 2016.

Dewarite devolution changed the context in which decisions were made radically and discontinuously but the structure of the state that implemented them only incrementally.

It is worth considering Gordon Brown’s constitutional reforms from a Dewarite perspective. Donald Dewar knew that Labour’s 134 seat First Past the Post ‘bonus’ was a false strength. That lack of oversight, and freedom of action, was a weakness. It is a mark of his political greatness that his legacy was himself, his office, in chains.

Gordon Brown’s constitution would not constrain a Prime Minister Gordon Brown at all. Some of that which Gordon Brown wishes be done would be protected from any successors by the entrenchment he proposes. As PM Brown had the backing of 55% of MPs thanks to the 127 seat bonus FPTP gave to Labour’s scant 35% of the vote in the 2005 general election. His successors would continue to enjoy that and all the untrammelled power that the Crown-in-Parliament bestows.

The current House of Lords have powers they cannot use as they lack legitimacy. Gordon Brown would replace them with a legitimate elected chamber, but strip it of the unused powers. The power to check the PM is the point of reform.

The people would also not be consulted directly on Brown’s scheme: a supermajority on a minority vote would suffice – loser’s consent doesn’t come into it.

The tragedy of Gordon Brown’s career was his astonishing leadership campaign. Not enough that he was nominated by MPs, not enough that he was nominated by a majority of MPs, not enough that he was nominated by so many MPs that none other could be, his juggernaut still rolled on demanding obeisance until all but 3 endorsed him. Weakness through strength was the nemesis and hubris of Gordon Brown, a man so brilliant in so many ways.

In the next general election, Labour could get over 80% of the seats in the Commons on under half of the vote, if the polls are right – the Brown contest redux.

Parliamentary sovereignty is both dead and undead. If it was simply alive, then EU membership only requires winning 37% of the vote and a majority of 1 in the Commons. But UK politics, Labour politics, is impaled on the hook of the popular vote – the people voted for Brexit.

Parliamentary sovereignty made sense when Parliaments were class institutions elected by property owners. The war dead forced the ancient and modern franchise of 1918, all men and some women, and the old mould was broken. Popular sovereignty is not going away. There is no return to the EU without a referendum. Both major Westminster parties cannot boldly say ‘No’ to a second Indyref without adding a ‘yet’.

But wider reform of the Commons is not the only lacunae in the Brown proposals – Brexit is present only in its absence.

There is no UK single market. NI is effectively in the EU Single Market due to the Northern Ireland Protocol. This extraordinary foreign customs and regulatory barrier between GB and NI is ignored in the Brown report.

When we joined the EU in 1973, factory chimneys weren’t decorative, rivers resembled garish modern art, smouldering sofas killed your family, our pipes were lead. The regulatory state that we take for granted was built and overseen inside European institutions. After Brexit it remains unbuilt in the UK.

Stormont was prorogued in 1972. A shadow Stormont by Orders in Council was created inside Westminster to avoid disrupting it. An NI Queen’s speech with 25 Bills would be drawn up, 1 or 2 constitutional or security bills would be taken on the floor and the rest by decree. This baleful example was repeated with Brexit.

After Brexit Westminster could have become either a modern, reformed, regulatory rule-making parliament (with the state bodies to match), or an explicitly rule-taking parliament. Instead the European Parliament is to be run inside it by decree, badly.

The obvious symptom of this is the car crash Retained EU Law (Revocation and Reform) Bill with its thousands of critical regulations to be speed-read and potentially left to expire. But that masks a deeper constitutional problem.

In the Cabinet UK Minsters (such as the PM or Chancellor) sit alongside English ones (such as Health), GB, and England & Wales colleagues. Westminster is both a UK and an English parliament. The application of the same procedure used at the prorogation of Stormont to the withdrawal from the European Parliament means all of these minsters effectively also become GB ministers with the power to emit regulation and law by decree into the GB Single Market.

Decrees informed only by territorial departments but applicable to devolved governments is a recipe for constitutional strife. Few predicted that the Scottish Gender Recognition Reform Bill would explode into a Section 35 dispute. Retained EU Law is this on steroids.

The Brown Proposals, the Councils for the Nations and Regions and the new Assembly of the Nations and Regions don’t address this fundamental misbalance. The Umpire across the Union will also be the Minister in England. The weaknesses of asymmetric devolution, the peripherality of the devolved 15% of the population is likely to be repeated in the new Assembly. It too is a UK-English hybrid, expected to take the lead in the special legislation for English local government.

The Assembly, part of the actual Union parliament, would be born weakened, toothless, and the Commons, eaten from the inside by the English parliament it contains, is to be strengthened.

In contrast, the Dewarite approach might be to be to move pan-UK functions to a Union parliament, replacing the Lords, and let Westminster return to an English parliament with its own Devolved Government – to consider the context in which decisions are made first – and to put it to a popular vote.

The old unreformed Lords mostly functioned as a block preventing a legitimate, elected body being created, one that might check the most centralised executive in Europe. The Commission’s new Assembly would play a similar role – preventing the creation of a Union parliament, occupying its space and freezing the constitution around parliamentary sovereignty again, for a while, doomed to fail like Cnut.

The Brown report also obsesses with things that don’t matter for Scotland. Westminster held Sewel-like legislative override powers over Ottawa and Canberra until 1982 and 1986 by which time they had long become unusable. So it is with Scotland. But Sewel is a political and not a legal problem, and will have a political solution.

Holyrood is also under no threat of abolition. Without PR at Westminster, such a step would turn the Scottish Tories, Scottish Labour, and the Scottish Lib Dems into regional groupings of councillors. The SNP wants Holyrood to exist, the opposition needs it.

The real and continuing threat to the UK, as clearly outlined in the report, is the parlous state of English local government, gutted and regutted by Westminster continuously since 1967.

The Brown Commission proposals would put the devolved constitutional settlements in a protective legislative box which they don’t require, and leave English local government, which does, outside it.

The Commission proposes both greater local powers in England’s great cities and outlines a welter of things they should be doing, and mechanisms and wheezes by which the centre can make them do them.

In contrast, Dewar wrote the reserved matters into the Scotland Act. Brown’s Commission more closely resembles the aborted Scotland Act 1978 which enumerated the devolved powers in mind numbing detail.

What English local government needs is power and a tax base to pay for it, with politics becoming struggle at a local level, and English government as an Umpire not a player – not planned decentralisation.

The golden thread of state reform since 1972 has remained don’t touch the Commons – pull the thread and the jumper unravels. The Commission on the UK’s Future is firmly in that tradition. The over mighty-centre must remain.

It is Britannia Unchained again, when Britannia in chains is required.

Gordon Guthrie

(Suggested citation: G. Guthrie, ‘Brown vs Dewar The Labour Commission on the UK’s Future’, U.K. Const. L. Blog (8th February 2023) (available at https://ukconstitutionallaw.org/))