The Brown Review is a welcome addition to the UK’s constitutional debate. But deeper change is required for a challenge of this scale, says Steph Coulter.
The last few years have proved to be fertile ground for students of the UK constitution. Once lauded as an idiosyncratic yet functional example of British pragmatism, the UK’s constitution appears to be under severe threat, a once impervious ship that is now taking on water from multiple different holes in its hull. Labour’s publication of their long-anticipated constitutional review, led by Gordon Brown, on Monday, represents a bold, but limited, attempt to address the multifaceted constitutional problems Britain faces.
To borrow some social scientific parlance, the UK constitution could be said to be at a critical juncture. Oft-wielded by historians analysing key moments in the development of institutions, critical junctures can be defined as “situations of uncertainty in which decisions of important actors are causally decisive for the selection of one path of institutional development over other possible paths”. They are useful for analysts seeking to pinpoint when and how social or economic institutions were set on paths which led to their evolution into new forms.
The Bennett Institute and the Institute for Government recently highlighted three key pillars of the constitution – separation of powers, territorial governance and democratic engagement. Whilst each of these has been under stress in the past, not since the English Civil War have all three been so profoundly challenged in tandem. Battles between the courts, parliament and government over Brexit and an increasing willingness of the government to clip the wings of independent “constitutional guardians”, are evidence of increased uncertainty of where power should lie in the UK. Brexit-fuelled tensions in Scotland and Northern Ireland have created seemingly unsolvable dilemmas for the UK state and have fanned the flames of secessionism. And parliament’s manifest reticence to proceed with Brexit, the accession of new Prime Ministers not elected at the ballot box and a secular decline in political trust are indicative of constitutional ennui amongst the population.
The processes of democratic erosion, national secession and public distrust are incredibly difficult to stop once they gain momentum. Whilst it is the wont of every generation to feel as if they exist at a moment of profound historical importance, the fact that all three facets of our constitution are under significant stress indicates that we are in the midst of a constitutional critical juncture, whereby paralysis will lead to a continuing constitutional deterioration that will become more difficult to overcome as time goes on. Conversely, the Churchillian adage “never waste a good crisis” applies here, with the current critical juncture providing an opportunity for wide-ranging reform that will secure the UK’s democratic future.
More so than the party of government, Labour seem to recognise this. Their recently published constitutional review attempts to grapple with the mammoth constitutional challenges faced by the UK across its 155 pages. It provides some politically challenging and radical proposals, most notably the abolishment of the House of Lords in favour of a leaner and directly elected Assembly of the Nations and Regions. However, it ultimately represents a partial response to the UK’s constitutional issues and does not provide the long-term change across all three constitutional dimensions that is required at this critical juncture.
Brown’s report is at its strongest when dealing with Westminster issues. The House of Lords is, in theory, a council of philosopher kings and captains of industry but, in reality, it is a vehicle for nepotism and corruption (as evidenced by Baroness Mone’s recently-revealed exploits). Replacing it with a democratic upper house has been a long sought-after policy in Labour circles, though it remains to be seen whether the proposed new assembly’s mandate to protect the constitution can coexist with party democracy, or whether it will simply become another battleground of an increasingly polarised political society. Labour’s constitutional review also provides strong provisions to “clean up” Westminster, with the banning of most second jobs for MPs, and citizens juries to determine whether MPs have broken rules. These are sensible introductions that will have a material effect on public life.
The report also devotes much ink to the territorial aspects of the constitution, though is on less stable footing in this area. Its desire to create more formal mechanisms for communication between the UK’s various governments is welcome, especially after the Covid-19 pandemic demonstrated the need for such processes. And its entrenchment of the Sewel Convention will go some way to insulating the devolved legislatures from an activist central government. It also makes provision for extensive devolution across England’s regions in a bid to redistribute power in one of the world’s most centralised democracies but remains quiet about England’s increasingly uncertain, and uncomfortable, position within the devolved union.
However, the review does little to provide clarity on the delicate political situations in Scotland and Northern Ireland. In terms of the former, Labour’s approach is paradoxical. On one hand, they allow the Scottish Parliament more latitude to pursue national membership of international organisations such as UNESCO, which will surely strengthen the international legal case for Scottish Independence. On the other, the review offers nothing on the conditions under which a new referendum can be held, a continuation of the “hands-over-ears” brand of unionism pursued by successive Conservative governments, which represents a missed opportunity to elaborate on the Edinburgh Agreement. As such, Labour’s report is hazy on the underlying constitutional question about whether the Union is at root a voluntary one or one held together by legal force. The lack of attention to Northern Ireland is more worrying still and is demonstrative of the seeming intractability of the political problems faced there.
The final pillar of constitutional crisis, the lack of public trust in the institutions of government, is similarly under-elaborated within the review. Lip service is paid to a national constitutional convention and a vague desire to “co-author” constitutional policy with the public is expressed but, aside from this, there is very little detail on how Labour plan on garnering democratic legitimacy for their reforms, barring a massive majority in the 2023 election. Political parties making promises about public engagement is nothing new and it may be the case that bottom-up initiatives will be forgotten in the furnace of party politics. Furthermore, the assumption that underpins the report – that Labour would implement such proposals without cross party-support – sees them ignore one of the key lessons from their last stint in government. This is that partisan constitutional change is subject to erosion once a party leaves government, with the proposed repeal of the Human Rights Act a pertinent example of this. In this sense, Labour’s review does not think deeply on how to bond society around their proposed new institutions, whether by uniting political parties at the top, or involving civil society and the public at the bottom. Failure to do either will leave such reforms susceptible to the same degrees of democratic discontent that our existing constitutional structures face.
Like any wide-ranging reform proposal, Labour’s review naturally leaves room for further clarification and deeper engagement with the issues at hand. However, its publication may well represent the start of a wider conversation about how to reinvigorate the UK’s constitution at this critical juncture.