In an article in today’s Guardian, Gordon Brown argues that Scotland should stay in the UK because of its “social union” with England, and our shared welfare state. Fair enough. That’s essentially the Labour case for the Union. But what really interests me in his piece is the thread of hostility to the British constitution that runs through it. For someone arguing in favour of the United Kingdom, I find that extraordinary.
Scotland has already changed Britain, Brown writes:
Westminster’s claim to undivided authority over the country? Dead and buried. The constitutional fiction that parliament, or the Queen in parliament, rather than the people, are sovereign? Gone for ever.
He’s legally wrong about Westminster’s authority being “dead and buried”: Westminster can legislate for the entire UK, and often does in a number of policy areas including taxation and social security, areas that are fundamental to Brown’s idea of a social union. His complaint that “the people” are not nominally sovereign is the most trivial possible constitutional point, and one I’ll return to before I’m finished. But Brown goes on:
Constitutional lawyers used to comfort themselves that the British constitution worked in practice but not in theory. Now it works neither in theory nor in practice.
I’m quoting the online version of his article here: the print version contained a revealing error, Brown mixing up theory and practice. Revealing, because his entire approach to the constitution reverses the true priority we should give to each, reflecting a dogged devotion to pure theory as demonstrated by his failure to cite a single practical example showing how, in his view, the British constitution fails to work.
Brown hints vaguely at the sort of constitutional settlement he’d like when he says ominously that
If Britain does not change of its own volition, Scotland will demand, at a minimum, “home rule within the UK”, and could force upon the whole country a system of government as close to federalism as you can have in a nation where one part forms 85% of the population
although later he expresses distaste for
using the language of threats and ultimatums
and he suggests Scottish legal institutions have become weaker recently:
Perhaps surprisingly, what is also new is the recent loss of a million members from Scotland’s churches and the weakening of the Scottish institutions – religious, legal, educational and even sporting – which expressed our Scottishness. They provided an anchor that made us comfortable with being part of Britain.
This seems an odd claim, as far as legal institutions are concerned. Scots will know better than I do whether he makes any sense here. But the only arguably recent weakening in the Scottish legal system that occurs to me is the subordination of the Scottish courts to the UK Supreme Court on human rights questions, even in the context of (otherwise independent) Scottish criminal justice, something that’s angered Alex Salmond. But the UK Supreme Court began its work and its human rights jurisdiction over Scotland in 2009, when Gordon Brown’s government brought into force the legislation setting it up. If anyone’s to blame for that, he is.
Praising the UK’s social union, Brown says
Britain’s guarantee of equal social and economic rights is far more progressive than anything offered by the EU, which has a single market but not a social market. Although it is a federal system, the US can only agree the most basic civil and political rights, and unlike Britain struggles with minimum US-wide rights to healthcare or social security.
But surely the relative lack of social policy cohesion in the EU and the US as compared with the UK comes not in spite of their being federations (of a sort, in the EU case, and full-bloodedly in the USA) but because of that fact. I wonder why Brown’s admiration of Britain’s social union doesn’t make him pause before wanting change here under a vague flag of federation.
Gordon Brown has long flirted rhetorically (though somewhat ineffectually) with fundamental constitutional change and the idea of a written constitution, leading Anthony Barnett to speak of his “lies and trickery” on the issue. Brown’s 2010 manifesto talked of setting up
an All Party Commission to chart a course to a Written Constitution
which we have been spared, at least.
But I must return to Brown’s longing for legislative sovereignty to be exercised in the name of “the people”. This is a longstanding bee in his bonnet; in the 1991 sovereignty lecture referred to by Anthony Barnett, Brown told us
The French constitution says that: ‘The community shall be based on the equality and the solidarity of the peoples composing it’. The Italian constitution ‘recognises and guarantees the inviolable rights of man both as an individual and as a member of the social groups in which his personality finds expression…’ The American constitution starts with the words ‘We the people…’.
these three examples intended as contrasting favourably with the position in Britain. Actually the linguistic and conceptual differences Brown points out aren’t quite as stark as written constitution-mongers like Brown would have use believe: in reality, article 1(1) of the US Constitution vests all legislative power in Congress, just as Britain’s doctrine of Parliamentary sovereignty vests all legislative power in Parliament.
Better examples for Brown’s purpose might be the now defunct constitution of the German Democratic Republic, article 3 of which said (in English translation)
All state authority emanates from the people
or to be more up to date, the constitution of the People’s Republic of China, article 2 of which says (in translation)
All power in the People’s Republic of China belongs to the people.
My point is that Brown’s concern about the language of constitutional ideas, and particularly whether they pay lip-service to the concept of popular sovereignty, is touchingly childlike in its superficiality.
Gordon Brown was a leading member of a government that brought a series of important constitutional reforms to this country, like the Human Rights Act, freedom of information, abolition of (almost all) hereditary places in the House of Lords, giving power to Parliament to decide on the use of military force, and devolution itself – all reforms that I support. They were done in the traditional way, by Parliament, and without calling into question Britain’s constitutional fundamentals. In fact they were arguably made possible by those fundamentals. We need more, and ongoing piecemeal constitutional reform in this country; not to dream up a fundamental new blueprint.
Reforming British governments, including Labour governments, need Parliamentary sovereignty. Consider how difficult it’s been, without it, for Barack Obama to offer anything like a “social union” involving health insurance in America. There’s a reason why old-school Labour figures like Michael Foot used to be strong supporters of the traditional British constitution.
But if Gordon Brown dislikes the UK constitution so much and wants a fresh start, with new constitutional rules ending Westminster’s national authority – why doesn’t he just vote Yes in September?