5th January 2023
Today the leader of the main opposition party in the United Kingdom gave a speech.
You can read a version of Keir Starmer’s speech on the Labour party website.
One part of it which seems possibly interesting from a legal perspective is a proposal for a “Taking Back Control” Bill.
This is what the speech said:
“So we will embrace the Take Back Control message. But we’ll turn it from a slogan to a solution. From a catchphrase into change. We will spread control out of Westminster. Devolve new powers over employment support, transport, energy, climate change, housing, culture, childcare provision and how councils run their finances.
“And we’ll give communities a new right to request powers which go beyond this.
“All this will be in a new “Take Back Control” Bill – a centrepiece of our first King’s speech. A Bill that will deliver on the demand for a new Britain. A new approach to politics and democracy. A new approach to growth and our economy.”
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This call for de-centralisation and devolution will face the two fundamental problems every such call has faced since the nineteenth century.
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The first problem for de-centralisation and devolution is the doctrine of the supremacy of the Westminster parliament.
This doctrine, which in good part was a Victorian innovation not known to earlier jurists, tells that all legislative power in our polity rests with the Crown-in-Parliament.
This means that no other body in the United Kingdom can legislate other than to the extent permitted by the Westminster parliament.
Recently this doctrine was illustrated by the Supreme Court decision on a reference by Scotland’s Lord Advocate.
In effect, the Scottish parliament is merely another statutory corporation, subject to the rule of ultra vires.
The Westminster parliament will not easily forego this legislative supremacy and – if we adhere to the doctrine of parliamentary supremacy – it may be impossible for the Westminster parliament to do so.
This means that any de-centralisation and devolution is at the Westminster parliament’s command: Westminster can grant this seeing autonomy, and Westminster can easily take it away.
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What we do have are numerous devolution and local government statutes, all defining and limiting what various authorities can and cannot do.
There is no real autonomy – even for the Scottish parliament.
No ability to do things despite what the Westminster parliament would like an authority to do.
Ambitious projects by local authorities – such as when the Victorian town of Birmingham (not even yet a city) went and bought and operated its own gas and water industries – would be impossible now.
That is real de-centralisation and devolution – doing things the centre cannot stop.
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The second problem for de-centralisation and devolution is in respect of policy and administration, rather than law.
It is the sheer dominance of HM Treasury in Whitehall and the public sector more generally.
For example, HM Treasury has a monopoly in respect of almost all fiscal and financial – that is, tax-raising and borrowing – powers.
(Even the Scottish parliament has limited autonomy to vary income tax rates and the Scottish government power to borrow money.)
And no public body has complete fiscal autonomy – and, indeed, many public bodies rely on central government for grants and financing.
It is unlikely that Whitehall will happily allow regional authorities and devolved administrations absolute power to raise taxes and borrow money.
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And now back to the word “control”.
Unless regional authorities and devolved administrations have absolute power to raise taxes and borrow money, or to make rules and mount ambitions problems, then they do not have “control”.
Instead, “control” will stay – as it always does – with Westminster and Whitehall.
Westminster and Whitehall can extend the leash, but they can pull the leash back.
That is not “control”.
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Looking more closely at Starmer’s speech, it is not clear to whom this “control” is to be actually given.
Consider the following passages (emphases added):
“…the Britain that Labour can build. A fairer, greener, more dynamic country with an economy that works for everyone, not just those at the top. And a politics which trusts communities with the power to control their destiny.”
“Giving communities the chance to control their economic destiny. The argument is devastatingly simple.”
“It’s not unreasonable for us to recognise the desire for communities to stand on their own feet. It’s what Take Back Control meant. The control people want is control over their lives and their community.”
“We need to turbo-charge this potential, but Westminster can’t do that on its own, it can only do it with communities. That’s why Labour will give them the trust. The power. And the control.”
And so on.
There is noting specific here as to who will get this supposed “control”.
Will it be existing local authorities or new regional bodies?
Will it be new legal entities smaller than existing councils?
And – most importantly if this really is about “control” – what will happen if those “communities” want to do something which Westminster and Whitehall do not want them to do?
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Starmer did list some of the topics where there could be devolution of powers: “employment support, transport, energy, climate change, housing, culture, childcare provision and how councils run their finances”.
But devolution is not granting “control”, as there will be limits to what even the most ambitious local authority will be able to do in the face of any opposition from Westminster and Whitehall.
And there is also a respectable argument – which you may or may not endorse – than on issues such as transport and housing, there needs to be far less local autonomy, not more, so for us as to escape the ongoing blight of NIMBYism.
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Starmer insisted in his speech that the “Take Back Control” will be turned from “a slogan to a solution”.
And it we missed the import of that rhetorical turn, Starmer then said it will be turned from “a catchphrase into change”.
(This is reminiscent of his predecessor Tony Blair’s wonderful statement once that “[a] day like today is not a day for soundbites, we can leave those at home, but I feel the hand of history upon our shoulder with respect to this, I really do.”)
But there is nothing in this speech which does go beyond slogans and catchphrases.
There is no substance to the supposed “controls” which are to be given “back”.
And there is nothing specific as to whom or what those “controls” are to be given.
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You may have Very Strong Opinions on de-centralisation and devolution.
You may welcome Starmer’s speech as a good and welcome signal of change.
You may oppose it as it may mean impediments to policies which may need to be directed at the national level.
But what one cannot say is that it tells us much, if anything, about how de-centralisation and devolution is to work in practice.
And it says nothing about how – at least in England – local authorities can break free from the real controls of Westminster and Whitehall.
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