‘Ministers like control, but Labour must offer radical, irreversible devolution’

Labour has promised a ‘Take Back Control Bill’ in the first King’s Speech. Aimed at England, it must bring to life Keir Starmer’s promise of a ‘whole new way of governing’.

But what sort of Bill? Will it entrench a fundamental and irreversible shift of power away from Whitehall and the UK government to England’s localities? Will it embed new constitutional rights for the people of England? Or, will it be more piecemeal tinkering of the kind we have come to expect? 

Disregard for norms means we are sleep walking into a crisis

Those questions are sharpened by a new report on the UK constitution published by the Institute for Government and the Bennett Institute for Public Policy. As well as seeing a growing crisis as political leaders ignore unwritten rules and norms and constitutional checks and balances, they argue that parliament does not treat constitutional issues seriously enough.

They conclude that constitutional legislation should be clearly identified and given much closer scrutiny than happens at present. Once given constitutional rights would be significantly harder to remove. 

Will the Take Back Control Bill be such a ‘constitutional act’ with all the protection of rights for England’s citizens that implies? 

Labour’s devolution to Wales, Scotland and Northern Ireland empowered the peoples of those nations. (Our incorporation of the ECHR and the Freedom of Information Act empowered people across the UK).

Will the people of England also soon be empowered in this way? Will they now know that the local authorities they elect, and the combined authorities those councils form, will have the right to exercise devolved powers they need, rather than by the gift of the UK government?

Does England sit in a constitutional blind spot?

England has no constitutional status, and while England is not the main focus of the Bennet Institute’s report, it does conclude that ‘England is over-centralised, lacks coherence and does not have sufficient accountability mechanisms, creating a democratic deficit….(and that) there is a disconnect between Whitehall’s increasingly Anglo-focussed operations and its continued insistence that it governs at a UK-wide level, with a failure to differentiate between its UK wide and England-specific functions.’

Gordon Brown’s report for Keir Starmer also argued that the “confusion of the government of the UK with that of England… does a disservice both to the devolved nations and to England itself” and advocated constitutional autonomy for local authorities.

Reforms are certainly needed in Whitehall. Former Permanent Secretary Philip Rycroft, and I have recently set out what these should be. But the Bennett/IfG report also calls for a new English Governance Bill to clarify the powers and responsibilities of different layers of government. This, surely, is what the Take Back Control Bill must do.

That would make it a constitutional Act, not a simple piece of enabling legislation to extend current powers.

To understand why this matters, we can look at the successful return of franchised buses to Greater Manchester after 40 years. While the BeeNetwork rewards the ambition Mayor Andy Burnham set out six years ago, those who claim it as a triumph for the mayoral model do not realise  that the legal and constitutional basis for the exercise of these powers is shaky.

It is determined by and dependent upon decisions taken by the Conservative central government, not on the leadership of individual mayors.

Without a constitutional fix, progress could be reversed easily

If ministers wanted, a simple legislative change could take away these franchising powers irrespective of the wishes of the people, councils or mayor of Greater Manchester.

In fact, the Conservative government has arbitrarily restricted franchising powers to the ten Mayoral Combined Authorities (MCLAs). Other local authorities and combined authorities – often covering much bigger geographies – would have to ask permission from Ministers with no guarantee of agreement.

More fundamentally combined authorities and their mayors do not have same legal status as other local authorities, or the London Mayor and Assembly. There is no collective status of being a combined authority – each has bespoke powers given at the whim of ministers.

Even the powers they have by regulation do not give them defined rights to exercise them, receive money in relation to them or enjoy financial autonomy in how they exercise those powers.  Local authorities themselves do not have the right to establish combined local authorities (instead having to jump through Whitehall hoops). Local people have no say on these arrangements or even whether they want a mayor at all. 

Labour could build on the current flimsy structure of ad hoc deals, perhaps making them simpler and offering some more powers, but keeping the real power over devolution in London.

Or it could see the Take Back Control Bill as a constitutional change, as Bren Albiston of the Society of Labour has argued, that empowers local people to take more decisions, draw down more powers and control more resources as a right, rather than by the whim of Whitehall. 

We must learn from history and beware an ad hoc approach

The first option may be attractive to new ministers who want to enjoy tight control. But ten years of English ‘devo-deals’ has shown that this ad hoc approach devolves too little and in far too few places.

Not even the most powerful MCLAs in Manchester or the West Midlands have anywhere near the power they need to counter the impact of historic austerity, let alone reshape their economies, public services, or communities for the better. 

Radical and widespread devolution will be critical to the delivery of Labour’s five missions and to making the best use of  limited public finances. This means that the Take Back Control Bill should become the first step in placing England’s governance on a proper, devolved, democratic and decentralised basis.