Brodies: achieving rapid consensus on wider UK constitutional reform is ‘optimistic’

At 6.10am this morning, when the Kingdom of Fife declared its result in the Scottish independence referendum and made a Yes win mathematically impossible, the debate on British constitutional reform was silenced. Silenced, that is, until just after 7am when David Cameron made a short but potentially significant announcement about his ambitions for changes to the governance of the UK as a whole. Whether those ambitions will be fulfilled – and whether they are compatible with the political promises made to Scottish voters last week – remains to be seen.

When the history of the 2014 referendum is written, a whole chapter should be dedicated to one opinion poll. The YouGov poll published on 7 September 2014 was the first to indicate a narrow lead for the Yes campaign. It created massive concern – some said panic – within the Better Together campaign and arguably led directly to what has already been dubbed as this morning’s “Downing Street Declaration”.

Following the poll, the pro-union parties redoubled their efforts to persuade the Scottish electorate of their commitment to enhanced devolution of power to Scotland. All three parties, Conservative, Liberal Democrat and Labour, have over the past 18 months set out their respective proposals for further devolution.  They do not agree on what should be devolved (and surprisingly the Conservative party’s proposals are the most radical at least so far as income tax powers are concerned) but they appeared last week to have settled on the timetable. In a ‘vow’ to the Scottish people published on the front page of one of Scotland’s tabloids, Messrs Cameron, Clegg and Miliband signed a joint declaration that “The Scottish Parliament is permanent and extensive new powers for the Parliament will be delivered by the process and to the timetable announced and agreed by our three parties, starting on 19th September.” That timetable involves the publication of a White Paper before St Andrew’s Day (30 November) and draft legislation by Burns Night (25 January 2015). Importantly, however, there is no commitment to having legislation on the statute book before the 2015 UK General Election.

Today the Prime Minister provided a bit more detail on the process for achieving political agreement on the new powers to be devolved to Scotland. That process will be led by Lord Smith of Kelvin (former Governor of the BBC and Chairman of the Glasgow 2014 Commonwealth Games Organising Committee), who will lead negotiations amongst the political parties. Comments made by Scotland’s Deputy First Minister, Nicola Sturgeon, this morning suggest that the Scottish National Party may be prepared to engage directly in those talks.  As questions of improving economic performance, competitiveness and job creation were central to the referendum campaign, we can expect calls for powers which can directly influence these areas to be included.  Either way, and bearing in mind that some tax change is already coming with the Land and Buildings Transaction Tax (Scotland) Act 2013 and the Scottish Income Tax Rate in force from 2016, there seems likely to be further divergence between the legal frameworks of Scotland and the other areas of the UK.

Perhaps more interestingly for those outside Scotland were the comments made by Mr Cameron in relation to the remainder of the United Kingdom, and to England in particular. Expressing the view that it was time for the people of the UK to come together, he said that “a vital part of that will be a balanced settlement”, making it clear that he considers the current constitutional arrangements at Westminster not to reflect English concerns.  He directly addressed the West Lothian question, appearing to suggest that the days of Scottish MPs voting on ‘domestic’ English issues are numbered. He was also clear that reforms to ensure the “millions of voices of England” were heard should proceed at the same pace as further devolution for Scotland. And that’s where some longish looking grass comes into view. The prospect of achieving any sort of political consensus on wider reform of the UK constitution within six to eight weeks might be said to be at best ‘optimistic’. Will the last few weeks’ commitment to rapid further devolution for Scotland hold up in the face of the desire to ensure that the rest of the UK gets something out of the constitutional reform process too? We’ll know soon enough.

Christine O’Neill is chairman of law firm Brodies LLP.