AN expert in constitutional law has cast doubt over whether Labour can achieve their vision of a reformed UK that works for Scotland.
Professor Aileen McHarg said while the party’s paper – titled A New Britain – sought to address some key issues surrounding the devolution settlement it lacked crucial detail.
The Durham University academic said she was surprised by how vague parts of the document were on big issues affecting the Union.
She told the Sunday National: “There’s a lot of devil in the details here which is just not properly fleshed out.
“The paper is surprisingly vague on a lot of really important questions and then very, very detailed on some minor stuff like how the Scottish and Welsh governments should be represented on the low pay commission.
“Well, OK that’s something very, very specific but then on the big picture, on the new safeguarding procedure and a new second chamber, all the stuff that could make a big difference is just vague. It’s not properly fleshed out.
“It’s the same on borrowing powers. I didn’t really understand what it was saying on borrowing powers.
“These are important things but there is a lack of detail on exactly what they mean and that’s problematic.”
Gordon Brown promised the proposals would “make the UK work for Scotland” with plans to give Holyrood a veto on devolved issues and the power to join international agreements such as Erasmus.
But the paper has been criticised by some for not directly addressing independence.
McHarg said this was surprising, given the report's aim.
She said: “There’s quite a lot of stuff that just isn’t in there and independence is thing that you might have expected to have been addressed in a document like this.”
Scotland wasn’t the least spared when it came to details, the academic added.
'It looks like a rushed job'
“There’s virtually nothing on Northern Ireland. There’s less than a page of text on Northern Ireland and we know there are huge issues affecting devolution there around the protocol. It’s not even mentioned.
“In general it looks like a rushed job. There are mistakes in it. There’s a part on the reform of intergovernmental relations when it talks about joint ministerial committees but they were actually replaced earlier this year.
“Did they not notice? It was just a bit strange. There were other things like that such as saying the Sewel Convention breakdown begun under Boris Johnson. Well no, it began under Theresa May.
“There were a few points like that where you think this could have done with a better proofread before it was published.”
The professor, who previously held posts at Glasgow University and Strathclyde, said she hoped that by the time the paper gets on to the Labour manifesto these issues would be resolved.
McHarg added: “But whether it’s clarified in terms of beefing up the proposals and concretising the proposals or dropping the proposals remains to be seen. Either of those things could happen.”
The Sewel Convention
Among Labour’s proposals is better protection of the Sewel Convention which states the UK Parliament should not usually legislate in devolved areas without consent.
She said there were two issues with the current Sewel Convention.
She said: “One is the increasing number of disagreements about whether or not devolved consent is required at all to particular bills.”
McHarg points to the row between devolved governments in Scotland and Wales with the UK Government’s levelling-up agenda.
Holyrood and the Senedd have warned that the Government’s policies in this strategy are encroaching on the devolution settlement.
She continued: “The Scottish and Welsh governments are both saying this bill affects devolved matters, and therefore, we should consent to it.
“The UK Government says no it doesn’t so we’re not even going to seek your consent. That’s one set of problems.
“And then the other issue has been, even where the UK Government has accepted that Sewel Convention applies they have been willing to proceed without consent.”
Labour’s proposal seeks to rectify these issues. It’s not perfect though, the academic adds.
Much of these reforms hinge around the scrapping of the House of Lords, which Labour say would become an elected assembly of “nations and region”.
But McHarg said the party has been promising a reformed Lords since 1911.
She said: “What this proposal does is to try to address both of those problems because it would allow the new second chamber to block, at least temporarily, legislation that was being passed without consent.
“And if there was a dispute about whether or not consent was required, there’s a proposal that they could refer matters to the Supreme Court.
“I think the difficulty with that, though, is that there’s no guarantees that the second chamber would do that. So it would have a power to block legislation but it wouldn’t be obliged to as far as I can see.”
McHarg suggests that means any reformed second chamber could run into the same issue that the House of Commons does where a majority of MPs will decide if a law has requires devolved consent. The issue is that those representing devolved areas would still be a minority – about 8% of the seats in Scotland’s case.
The Durham lecturer said a parliament could potentially design a process in which it would compensate for the minority status of Scotland, Wales and Northern Ireland.
But she added that there’s no suggestion of this in Labour’s paper.
