Tuesday, December 6, 2022

If the expression "thin gruel" didn't exist, we'd have to invent it to describe Gordon Brown's constitutional reform plan

So does Labour's much-vaunted "powers giveaway" plan actually offer any new powers to the Scottish Parliament?  The answer is 'yes', but by God they're limited - and as always with Gordon Brown, there's a sting in the tail.  The brief section on Scotland contains just six proposals, and only TWO of them are primarily about strengthening the Scottish Parliament's powers.  Those two are:

* Allowing Scotland to join international bodies and enter into agreements with them on devolved matters only.  I find it hard to imagine this ever coming to pass, but if it did it would be a small step in the right direction.  It was the sort of thing that was requested (and rejected out of hand) during the Smith Commission process, because it would have brought Scotland more into line with the regions of Belgium, which have limited powers in the realm of foreign affairs.

* Constitutionally entrenching the Sewel Convention, so that the UK Parliament cannot legislate on devolved matters without the Scottish Parliament's consent.  (Additionally, the notorious word 'normally' would be removed from the Sewel Convention, to strip away the stock excuse of "of course we wouldn't normally legislate on devolved matters without consent, but these are the abnormal circumstances envisaged by the convention - let's face it, consent has been withheld, so that's abnormal for starters".)  Amusingly, this means Brown is admitting that one of the promises made by unionists at the time of the 2014 independence referendum has been broken, because the Sewel Convention was supposed to have already been put on a statutory basis by the Smith Commission and subsequent legislation.  In practice, all that happened was that a sentence starting with the words "it is recognised" was put into law, which as the Supreme Court noted was intended to have no legal effect and does have no legal effect.  It was the equivalent of a pretty illustration in the sidebar.

So will Brown's plan be yet another con-trick?  Quite honestly it sounds like it, because the "constitutional entrenchment" of the Sewel Convention seems to depend entirely on the credibility of two supposed "safeguards": a) any breach or repeal of Sewel would have to be passed by both chambers of the UK Parliament (you know, just like any other piece of legislation), and b) devolution itself could not be abolished without the consent of the replacement for the House of Lords.  The latter point is particularly fatuous, because although the new upper chamber will have Scottish representation, it will be - like any other UK institution - a body with an overwhelming English majority.

There's also the point that the breaches of the Sewel Convention that have already taken place have stripped vast powers from the Scottish Parliament that were part of the original devolution settlement (most notably via the Internal Market Act), so unless the status quo ante is restored prior to this "constitutional entrenchment" being enacted, it'll be a classic case of closing the stable door after the horse has bolted.

In the very first podcast I was a guest on, almost a decade ago, I took issue with the suggestion that it was impossible for devolution to be meaningfully entrenched in a country without a written constitution.  I pointed out that the UK Parliament cannot reverse the independence of Australia, for example.  Andrew Tickell, who was one of the other guests, dismissed that point out of hand, and said that theoretically the UK Parliament could indeed abolish Australian independence, because the UK Parliament has unlimited powers.  But I thought about it afterwards and came to the conclusion that my point was essentially correct, because any laws the UK Parliament pass for Australia would have no legal effect in Australia itself.  Why not?  Because the Australian courts would not recognise them as valid due to them coming from a foreign parliament with no remaining authority to legislate for Australia, and the Australian government, army, police, etc, would obey the rulings of Australian rather than British courts.  

So that allows you to see how constitutional entrenchment in Scotland could be made to work in practice, but it would require much more drastic steps than the ones proposed by Brown.  What you would need is some kind of special Scottish constitutional court, or constitutional enforcement body, with members whose oath of office binds them to uphold only the 'law of entrenchment' itself and to disregard any attempt by the UK Parliament to repeal that law or the institution that they are part of.

Curiously, Brown's report calls for decentralisation from Holyrood to local government and for the creation of English-style metro-mayors (yawn).  If that was enacted by a UK Labour Government, it would in itself breach the Sewel Convention, because local government is a devolved competence.  The report acknowledges this and says it is simply something Labour are calling on the Scottish Government to do.  So what the hell is it doing in a set of proposals for a UK Labour Government to reform the UK constitution, then?

(For completeness, I should add that close examination of the "Shared Government" section reveals that there's also a proposal to devolve the administration of job centres to Scotland - that seems to have been chucked in as a sort of "road signs" sweetie.)

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  1. No devolving of powers over the media and surprise surprise no devolving of powers over oil and gas. Vow 2 like vow1 is just another Britnat con.