Creating a constitutional moment

Pauline Bryan argues Brexit could be an opportunity to remake Britain in a federal mould

Sometimes when you ask for directions, you’re told: ‘I wouldn’t start from here’. That may be the best response when considering the British constitution. Not having a codified constitution may have some advantages – it has allowed changes to be introduced quickly when governments have to respond to significant political pressure. But quick fix solutions are not necessarily the best. In Britain, it has resulted in a piecemeal approach to devolving powers leaving a patchwork of different arrangements in different parts of Britain.

As a result, we have ended up with the Scottish Parliament and the Welsh, Northern Ireland and London Assemblies, each with different powers. Across the remainder of England, there are Metro Mayors, Police and Crime Commissioners, City Deals, Unity Authorities, Metropolitan Districts, County Councils, District Councils, London Boroughs and the City of London. And finally, as a response to the Scottish independence referendum, up popped English Votes for English Laws (EVEL). Regardless of the Brexit outcome, it is important that Britain looks at its constitution from top to bottom, or better still from bottom to top.

Local authorities across Britain are being starved of funding but also have a list of statutory duties. The traditional powers excised by local government over decades have not been safeguarded as is shown by the Scottish Government bypassing local authorities, and in the name of giving more powers to head teachers, taking more direct control of schools which has effectively taken education out of local democratic control. This follows the centralisation of the Fire and Rescue Service and Police Scotland.

The SNP government has followed in the footsteps of Margaret Thatcher’s rate capping by placing restrictions on how much council tax could be raised without incurring prohibitive sanctions. The business rate is set by the Scottish Government and collected centrally. In all, the powers of local government have been diminished and councillors have been encouraged or required by law to behave more like company directors than political representatives. It can mean that the unelected officials have disproportionate influence on the work of councils. Rather than devolving power, the Scottish Parliament has led to more central control at Holyrood and less at local council level.

When the Scottish Parliament was established, it had a range of devolved powers including the power to vary taxation. In 1999, it was probably assumed there would be a period of stability while the Parliament bedded in and tested the limits and possibilities of its powers. Following the death of Donald Dewar and the quick resignation of Henry McLeish, there were three First Ministers in less than three years. The coalition governments were uninspiring and failed to justify the expectations of those who had campaigned for the Parliament. This, together with the Blair government’s involvement in the Iraq war and other policies, helped spread a disillusionment with the coalition of Labour and the Lib-Dems and encouraged support for the SNP and, to some extent, independence.

The Scottish Parliament’s history seemed to confirm Michael Keating’s claim in ‘Second Round Reform’ (2009) that once you start down the road of devolving powers there will be demands for more. The British constitution is particularly vulnerable to these demands because making a fundamental change only requires an Act of Parliament.

The powers of the Scottish Parliament could theoretically be withdrawn by the Westminster Parliament. While the Sewel convention established Westminster would not legislate on devolved issues without the express consent of the Scottish Parliament, we have seen from the repatriation of powers through Brexit that this may not always be adhered to. Book cover

A referendum on independence was ‘granted’ by the Cameron government, and to succeed it only required a simple majority. As with the EU referendum the outcome appeared to be assured, but as the campaign went on polls showed that support for independence was growing. As the gap narrowed, the Westminster government made promises of additional powers for the Scottish Parliament. This led to the Smith Commission and, even though no Scottish government had maximised the use of existing powers and the tax varying power had never been used, more powers were devolved.

The range of powers that the Scottish Government received under the Scotland Act 2016 included raising its own income tax, rail franchising, Crown Estate in Scotland, Air Passenger Duty, enhanced control over 8 social security benefits and legislating on abortion. The Red Paper Collective has always asked: ‘What is the purpose of a new power? And, what will it be used for?’ It believes in powers for a purpose, not for their own sake.

Constitutional experts have explained our lack of a codified constitution as being due to not having gone through a ‘constitutional moment’ when circumstances obliged the state to codify and put in writing the rules under which it would operate. Britain had its ‘moments’ mainly during the seventeenth century before the concept of a constitution had been established. Unlike similar states, the British Constitution is based on conventions, but these are not on a statutory footing and even what we may think they are set in stone they can be overturned simply by an Act of Parliament. For example, the Human Rights Act could be removed or amended as easily as a change to laws on shop opening

Could Brexit be that ‘constitutional moment’ for Britain? Adjusting our constitution for the return of powers from the EU is not straight forward. It is not simply a case of returning to what applied in 1972 before entry. Most crucially there was no Scottish Parliament or Welsh Assembly at that time. What we are seeing in the process of adjustment is that the Westminster Government is immediately claiming the repatriated powers centrally and it is the Westminster Government that will decide what will be passed on to the devolved governments. Theresa May retained control of 24 areas that are covered by devolution including public procurement, fishing, agriculture and some environmental issues. This challenge to the devolved settlements and concern for how devolution can be safeguarded gives further impetus to those supporting a more federal arrangement for the whole of Britain.

A poll conducted last year for the Electoral Reform Society showed a clear majority support reform of the House of Lords. Many would argue that is long overdue and that a second chamber cannot continue to be unelected, unaccountable and have among its members hereditary peers. There is growing interest in replacing it with a Senate of the Nations and Regions. Jeremy Corbyn has stated: ‘We have a House of Lords which is dominated by a small number of people from London and the south east. I would want to see an elected second chamber that it is representative of all regions and nations of the United Kingdom. I think that’s very, very important. I think it should have an electoral mandate to go with it’.

One of the issues raised when considering a fully elected House of Lords is that it would challenge the sovereignty of the House of Commons. Both Houses would have the same legitimacy of being elected, so what is there to stop stalemate between the two resulting in the British equivalent of the US government shutdown?

One way to avoid this is to make the two Houses responsible for different aspects of government. Without the EU providing common standards and regulations between the devolved Parliament and Assemblies that role could be undertaken by a second chamber. Considering this arrangement immediately raises the question of how would England be represented? A single English Parliament would raise concerns about its size in proportion to the other parts of Britain. I suspect that it would also reinforce demands for powers to be devolved to the regions of England.

Some argue that the second chamber could be a mixture of elected and appointed members so that people with significant expertise in particular areas can be given a role. The ‘expertise’ of the current Lords reflects the British establishment and while these people are eminently qualified in their areas of interest, it doesn’t make them better able to make decisions on behalf of the vast majority of people in the country. You can see some of the members of the current chamber who have wonderfully impressive experience and knowledge and who sit on the Tory benches supporting the Government’s attacks on working people.

The Red Paper Collective has for the past 10 years argued the case for progressive federalism. It will campaign at Scottish Labour Party conferences and the Scottish Trades Union Congresses for support for a radical, democratic constitutional settlement, based on the commitment to redistribute power and wealth, and that takes account of the consequences of Brexit.

The new settlement should move from the existing model, where power is devolved from the central state to Scotland. It should instead be a relationship of shared power based on partnership, not hierarchy. Under this arrangement there must be common minimum standards across Britain on human rights, employment rights, consumer protection and environmental protection and that the Scottish Parliament should have the power to enhance but never detract from these minimum standards.

Baroness Pauline Bryan was appointed by Jeremy Corbyn in 2018 to develop the Labour’s constitutional policy. The publications of the Red Paper Collective can be found at and this article is an abridged version of a chapter in its latest publication, ‘Time for a Radical Scottish Parliament’.

  • In this version, the editor has dispensed, where possible, with the term, ‘the UK’, for although it is the legal entity comprising Great Britain and Northern Ireland, the peoples in and of the four nations are neither united in national nor class terms and should not live in a kingdom. The terms, ‘Westminster’ or ‘Britain’, are used instead. The term, ‘Great Britain’, would not be used as there is nothing ‘great’ about Britain either (even if the term was used in the sense of greater to denote size) See also editorial on this issue too.