Labour should build a transformational devolution agenda – and not stop there

Law professor Sionaidh Douglass-Scott recently said that “constitution-building is a bit like dentistry: there’s never a good time for it; nobody does it for fun, but it’s sometimes necessary and, when it’s done right, it prevents greater pain in the future”.

We should all be regretting the lack of significant constitution-building in modern Britain. The pandemic has highlighted the uneasy constitutional framework of our union. Developed over centuries but accelerated under the last Labour government’s devolution agenda, there is confused settlement of powers, responsibilities and expectations between Westminster, the devolved nations and the English regions.

The money is in Westminster, but the health regulations are made in Cardiff and Edinburgh. The power may be in Downing Street, but city region mayors like Andy Burnham have a mandate, and the government is now cutting local deals in order to implement further lockdown measures. Our country is experiencing and responding to this crisis in an incoherent manner.

A comparison to Germany’s federal system is startling. From the outset of their response to the pandemic, regional leaders were empowered with regard to test and trace, the health system and the local economy. Their system of government, although not perfect, has been more robust to the challenge. On the other hand, our government has belatedly handed some powers to our regional leaders to operate tracing system some eight months into the crisis.

The issue of devolution is intertwined with the feverish political debate about where power lies in the context of Brexit. For many, ‘take back control’ meant less about directives from Brussels and the EU, and more about grasping it back from London. The public felt forgotten and unheard, isolated from Westminster and the decision-making process. Conversely in Scotland, people voted two to one to remain in the EU, but have now been dragged out. Support for independence in Scotland is at an all-time high after 13 years of anemic SNP government.

During the leadership campaign, Keir Starmer called for a new written constitution and focused on the “giving away of powers to hand more power to people in the devolved nations and the English regions”. He described a “radical federalism” and a “new constitutional settlement: a large-scale devolution of power and resources”.

Although not a priority during the crisis, in a post-Covid world the public will be more alive to the politics of devolution. The high-profile stand taken by Andy Burnham in Greater Manchester will mean the dynamics of a regional mayor set against Westminster will likely further the desire for more local decision-making and greater devolved powers. The devolution genie is well and truly out of the bottle. Labour should grasp the nettle and begin work on a transformational devolution agenda to take into the 2024 election campaign.

But Labour should not stop there. Other singular issues emerged from the Brexit chaos, from the extent of prerogative powers in proroguing parliament to the role of the legislature in operating international treaties. The Supreme Court has been forced to enter political terrain which, as they themselves have remarked, is highly unsatisfactory. Our unwritten constitution – a rare position in the modern world shared only with New Zealand and Israel – has provided unstable foundations by which to tackle the admittedly daunting tasks of implementing a referendum result on Brexit and now a global pandemic.

The lack of codification of our constitution gives more room for political recklessness. On Brexit, for example, that we had a referendum at all, when one option led to a vast array of unknowns that were not set out for the public, and would split opinion once more, remains bewildering. Clement Attlee once said that referenda are a “device so alien to all our traditions… and too often it has been the instrument of Nazism and Fascism”. This is not a party-political point: Margaret Thatcher, a supporter of parliamentary sovereignty, once read out a letter in the House of Commons bemoaning the notion that referenda were useful in a healthy democracy. A codification of aspects of our constitution would be able to offer a remedy.

There is also a further tension at the heart of our constitution that must be confronted. In a system that leans so heavily on the separation of powers, there is a lack of any underpinning principle. Parliament is sovereign, but what if, as the government has hinted it would do, there is a majority to curtail the role of judges to review executive decisions? What, as again this government has flirted with, there is a majority to repeal the Human Rights Act? What could be relied upon to protect our most basic rights? These questions are not easy for constitutional lawyers, let alone lay members of the public. To have a constitution that is so incoherent and so inaccessible does not befit a modern nation.

Under this government, with an 80-seat majority, we can observe how vulnerable key constitutional tenets can be with the Faulks panel assessing means of stifling judicial review, attacks on “lefty lawyers”, and the breaching of international law with the internal market bill. Labour should begin work to prepare for government and to find the mechanisms to better protect the principles of human rights, judicial review and the rule of law. The Conservatives have used Policy Exchange – a shadowy right-wing think tank full of Dominic Cummings’ misfits and weirdos – to build a ‘Judicial Power Project’ for their agenda of constitutional vandalism. Labour needs similar organisations to come together, but to make the case for constitutional propriety in a new settlement.

Tony Blair’s New Labour government entered office with the intention of implementing dramatic constitutional reform. It was successful, but only to some extent. The fire-fighting nature of government, with daily distractions and political challenges, meant this work went unfinished. The consequences of that are being felt today. A Keir Starmer government should be different, and get the job done.