After the Scottish Referendum: A Constitutional Chain Reaction Unfolds

After the Scottish Referendum: A Constitutional Chain Reaction Unfolds

Charlie Jeffery (University of Edinburgh)


What a twist in the tale. On 18th September 2014 the question was whether or not Scotland should be independent country, and on the morning of the 19th Prime Minister David Cameron announced he was looking for a decisive answer to the English question (and said we better also look again at how Wales and Northern Ireland are governed).

Cameron’s announcement was the third step in a constitutional chain reaction that we now see unfolding before us. The first was the YouGov poll on 5 September which showed a 51%:49% Yes lead in referendum voting intention in Scotland. This, combined with other polls published in the next couple of days that also showed the race was neck and neck, sowed panic in the ranks of the No side.

Enter Gordon Brown. Speaking with the endorsement of the three pro-union party leaders, David Cameron, Nick Clegg and Ed Miliband, he set out on 8 September a breakneck timetable for delivering additional devolution to Scotland. This would see a new Scotland Bill debated in the House of Commons in March 2015 so that all three parties could pledge to enact that Bill in their manifestos for the May 2015 UK General Election.

Then on 16 September the three party leaders produced ‘The Vow’, as recorded on the front page of Scotland’s Daily Record, which reaffirmed the commitment to deliver additional devolution on Brown’s timetable, and gave additional pledges on the NHS in Scotland and on the continuation of the Barnett formula that determines the funding available to the Scottish Parliament. The pledges on the NHS and Barnett were designed to head off the claims on the Yes side that the NHS was in danger of being privatised if Scotland remained in the UK and that current levels of funding for Scotland would be at risk if Scotland voted No.

All this smacked of last-minute panic. The pro-union parties had each produced proposals on additional devolution for Scotland in the event of a No vote months before, with clear areas of common ground in the fields of tax devolution and welfare powers. But they had failed to agree either common proposals or a clear timetable for action, allowing the Yes side to question the strength of their commitment to additional devolution. And they had had plenty of opportunity to offer the other pledges in ‘The Vow’ and, more generally, to offer a more positive set of arguments about Scotland’s place in the UK if Scots voted No. But the No side had continued to major on the negative themes of what many came to call its ‘Project Fear’: the risks and uncertainties of independence, especially the economic risks, especially the uncertainty about which currency an independent Scotland would use. There was a growing sense as the referendum approached that all the warnings about these risks were getting tired, diminishing in their effectiveness and allowing Yes support in the polls to creep up as a result.

So that’s why we saw a shift to a more positive agenda of additional powers and guarantees for Scotland in the days before the referendum. And, given the clear margin of the No victory at 55.3% to 44.7% it seemed to work. But: that agenda was unplanned, rapidly improvised, and as a consequence also lacking in appreciation of the possible spillovers it might have elsewhere in the UK.

Which is where the Prime Minister came in on the morning of 19 September with the third step in the chain reaction. In the days after the Brown timetable was announced and the ‘The Vow’ was given two sets of grumbles started to be heard. The first was on the backbenches of the Conservative Party at Westminster. Here the narrative was about how unfair it was to England for Scotland to get additional powers, and in particular for Scots MPs to continue to have a say on matters to do with England in the House of Commons when English MPs had no say in all the matters (with more now promised) that were devolved to Scotland. What was needed was what has become known as English votes on English laws at Westminster (or EVEL, as its acronym has it), with Scottish (and, presumably, Welsh and Northern Irish) MPs removed from at least some parts of the legislative process on English matters.

The second set of grumbles was from Wales and had to do with the pledge to maintain the Barnett formula as is. Wales is widely felt to be underfunded relative to need through the current Barnett arrangements (and Scotland funded generously relative to its need). For some time now the mantra in Wales has been one demanding ‘fair funding’. Senior figures in both the Labour Party and Plaid Cymru immediately cried foul about the Barnett vow, echoing concerns raised earlier by Richard Wyn Jones in a memorable contribution about the No side in the Scottish debate ‘throwing Wales under the bus’.

So a YouGov poll led to last-minute offers being made to the Scots if they would vote No, and, when they did, we found ourselves not just with a timetable for legislation on new powers for Scotland, but also a commitment to move to English votes for English laws in the House of Commons, also on a rapid timetable, and for action on further devolution in Wales (Northern Ireland was also mentioned, though this seemed to be for the sake of completeness rather than actually having any ideas about what to do in Northern Ireland).

Since then we have seen two processes set up, one on additional powers in Scotland, the other exploring English votes for English laws in the House of Commons (Wales and Northern Ireland appear to be at the back of the queue and not deserving of such urgency).

Both processes are fascinating, not least because of the party-political dynamics they have opened up. In Scotland, Lord Smith of Kelvin, fresh from his role in leading the organising committee of the Glasgow Commonwealth Games, is convening cross-party talks on more devolution focused on delivering Gordon Brown’s timetable. That timetable is extraordinarily ambitious. The aim is to have a Command Paper published by the end of October 2014 setting out the parties’ views on more devolution. This then opens up a period of consultation designed to inform a White Paper published by the end of November, which will set the parameters for a Bill to be introduced to the House of Commons by 25 January 2015, and that Bill to reach its second reading – that is when the main principles of a Bill are first debated in plenary session in the House – by March.

That timetable will not allow for significant consultation beyond the ‘usual suspects’ in business, unions and the voluntary sector; rather sadly, given the vast public engagement in Scotland with the referendum debate, there is no genuine opportunity to engage the public. It will be, essentially, a behind closed doors compromise between the parties – or at least some of them. Which ones is the interesting question.

Prior to the referendum Labour, the Conservatives and the Liberal Democrats each produced proposals for additional devolution with a strong focus on tax and welfare devolution. Labour’s proposals are by far the most modest on tax devolution, betraying an unease in a centralist Westminster party about further devolution. Labour’s proposals also envisaged the devolution of some welfare powers (housing benefit, attendance allowance and the work programme) and a strengthening of local government in Scotland. There is common ground here with the Conservatives (on welfare) and the Liberal Democrats (on local government), but both these parties envisage significantly more tax devolution than Labour, including full devolution of income tax and the possibility of assigning revenues generated in Scotland by other taxes (corporation tax for the LibDems and VAT for the Conservatives) to the Scottish Parliament’s budget.

Perhaps the most interesting question is how the SNP will engage with this process. It has signalled a commitment to do so, nominating a big-hitter, John Swinney, the Scottish Finance Secretary, as its lead negotiator. And it has not suggested it would hold out for ‘devo-max’, that is the devolution of everything except defence and foreign affairs, but rather a number of more pragmatic and potentially realisable objectives around job-creating powers and measures to tackle inequality.

Other ideas have bubbled up through SNP voices (e.g. powers to deviate from Westminster policies regulating fracking) or on a cross-party basis (on equalities policy and the Scottish franchise, following the successful experiment of extending the franchise to 16-17 year olds in the referendum). Others still will be raised through consultation as ‘the usual suspects’ make their contributions. It remains to be seen whether the agenda of the Smith talks will open up in such ways to extend beyond the pro-union parties’ focus on tax and welfare devolution. The SNP’s presence will certainly ensure pressure in that direction – and will put pressure on Labour in particular to move beyond its limited stance on further devolution. That pressure is made more acute by the geographical support for Yes, which concentrated in areas of traditional Labour strength in and around Glasgow and in Dundee. Expect the SNP to try to maintain the momentum at Labour’s expense.

Labour is under pressure too in England. We know rather less as yet about how William Hague’s work on EVEL will unfold. The first to be engaged by Hague were restive Conservative backbenchers like Bernard Jenkin and John Redwood in a special meeting at Chequers, the Prime Minister’s country residence. There is a sizeable chunk of the Westminster party that sees action on England as urgently needed, worries about UKIP draining support (and defector MPs) from the Conservatives on the issue, and needed to be reassured.

But while David Cameron’s opening up of the English question was in part about internal party management and the UKIP threat, it has also put Labour in a difficult place in England. While senior figures, including – fleetingly – Ed Miliband, have flirted with the idea of developing a distinct English agenda and appeal for the Labour Party, this has been tied up with localism and city-regions rather than a solution at Westminster.

The reason is obvious enough. No-one expects Labour to win a resounding majority in the next UK election, and it is quite conceivable that a narrow Labour UK-wide majority could be dependent on Labour’s contingent of MPs from Scotland. So this is not a good time for Labour to be confronted by the prospect of MPs from Scotland being unable to vote on English matters, which could remove its majority on such matters.

But there is also growing evidence that people in England are becoming concerned about the absence of institutional recognition of England in the UK political system, think Scottish MPs voting on English matters is unfair, and see EVEL as the best of the various possible solutions. So Labour is in danger of positioning itself as opposed to the expression of a neglected English voice in UK politics. Having realised this, the Conservatives are now seeking to cause maximum embarrassment.

Initially David Cameron proposed that the implementation of EVEL needed to proceed in lockstep with the Gordon Brown timetable on additional devolution for Scotland. That lockstep has now gone, with the Conservatives saying – rather gleefully – that if Labour opposes progress on EVEL, they will be happy to put the issue to English voters in next year’s general election.

How ironic is it, that having left, through Gordon Brown, a decisive mark on the constitutional chain reaction that is now unfolding, Labour finds itself in such an exposed position vis-à-vis the SNP in Scotland and the Conservatives in England? How nostalgic the phrase ‘better together’ must now sound.


Charlie Jeffery is Professor of Politics at and Vice Principal, University of Edinburgh and Director of the ESRC Programme on The Future of The UK and Scotland.