Public Law

oof of building with Saltire and Union Jack flagVoters in Scotland have voted ‘no’ to the question “Should Scotland be an independent country?”, by a margin of 55% to 45%. The outcome was confirmed just after 6am this morning, when the return from the Kingdom of Fife put the unionist side ‘over the top’.

But that does not mean an end to constitutional wranglings in Scotland. Not a bit of it. What it means is that attention will now turn to the further devolution of powers to the Scottish Parliament.

Further devolution

We produced a series of posts on the various proposals from the main pro-Union parties to devolve further powers in the event of a ‘no’ vote, and links to each of those are collated here.

Since those posts, and in particular over the last couple of weeks, there has been significantly more information produced by the Unionist parties on the process by which they anticipate delivering that devolution. In particular, former Prime Minister Gordon Brown last week set out the following timetable for the delivery of those powers:

  • work to begin on the new legislation on 19 September (i.e. today!);
  • a ‘command paper’ to be published by the UK government setting out the proposals by the end of October;
  • a white paper to be drawn up by the end of November, after a period of consultation, setting out the proposed powers; and
  • draft legislation to be published in January (most likely by or around Burns night).

David Cameron, Ed Miliband and Nick Clegg then published a ‘vow‘ in Tuesday’s Daily Record committing to that timetable.

A picture of the Scottish ParliamentThe Prime Minister spoke to the media this morning, shortly after the referendum result was confirmed, to repeat the above timetable and announce that Lord Smith of Kelvin has agreed to head up the process. As our own posts on each party’s proposals made clear (and as the BBC summarise here and here), there is no consensus on what extra powers should be delivered, and now that independence is off the table First Minister Alex Salmond has confirmed that the SNP will also want to have their say. The most likely outcome (as we suggested in an earlier post) is therefore that the legislation published in January will cover powers on which agreement can be reached, and each party will then include a commitment to enact that legislation in their manifesto for next year’s UK general election. There will almost certainly not be enough time to actually introduce and enact legislation before Parliament is dissolved for that election at the end of March.

(Alex Salmond’s concession speech this morning stated that the other parties had agreed to have a second reading of the proposed legislation by 27 March, but we have been unable to find any statement to that effect – though if you can assist please do feel free to comment below! In any event, as 27 March is the final sitting day of the current Parliament, the Bill would then be ‘guillotined’ and have to be reintroduced after the election anyway.)

Where a party has proposals for further devolution on which consensus cannot be reached, those will presumably also be put to the (UK-wide) electorate via the party’s 2015 manifesto and enacted by the new Parliament if that party is successful (as the phrase “devo-max” seems to have taken hold as a media shorthand term for the delivery of further devolution, it may be worth noting that it is very unlikely that the package actually delivered will equate to the technical meaning of that phrase).

What all of this means for the Scottish Rate of Income Tax, due to come into force in April 2016, remains to be seen. However, with each party proposing to go further in devolving income tax powers, it is quite possible that in the interests of avoiding piecemeal changes the SRIT could simply be overtaken by events.

UK constitutional change

A picture of a magnifying glass zoming in over a map of ScotlandBut the constitutional shake-ups do not end there, oh no. In his statement this morning, Mr Cameron also revealed his intention to resolve the so-called ‘West Lothian question’, which concerns the ability of MPs from the devolved nations to vote on legislation that does not apply to their constituents (though this issue is often thought of as ‘English votes for English laws’ it is more nuanced than that, as the UK’s ‘asymmetric’ system of devolution means that Welsh and Northern Irish MPs are sometimes in the same position as Scottish MPs and sometimes on the other side of the equation).

It appears that he has in mind limiting or removing the ability of those MPs to vote on such legislation at Westminster rather than establishing a separate English Parliament, but the exact shape of the reforms remains to be defined. Leader of the Commons William Hague has been tasked with producing  a proposal. Mr Cameron expressed the “hope” that reform could be agreed on a cross-party basis, though Labour’s Douglas Alexander has already expressed scepticism (though it would appear not necessarily opposition, with Lord Reid reportedly welcoming the move).

Intriguingly, Mr Cameron declared that this process “must take place in tandem with and at the same pace as the settlement for Scotland”. As Aileen McHarg pointed out in this detailed and interesting post, the timetable for the latter process alone “seems extremely ambitious”. Attempting to agree extensive reforms to how other parts of the UK are governed on the same timetable would be more ambitious still. It may therefore be that Mr Cameron actually has in mind each set of proposals being legislated for at the same time, rather than proposals for reforming Westminster also being agreed and drafted by January 2015. Certainly considerations of realpolitik might require the various proposals to be legislated for as a package if broad support for further devolution is to be secured from English MPs.

The independence debate may be over, but constitutional change (both within Scotland and for the UK as a whole) will remain firmly on the agenda over the coming months and years. That is certainly good news for us constitutional law junkies, but you will no doubt have your own opinion on that! Please feel free to share in the comments below.

 

Charles Livingstone

Charles Livingstone

Partner at Brodies LLP
Charles works with a broad range of commercial, public sector, charitable and individual clients, advising them on public law issues including judicial review, human rights, information law and the powers and duties of local and other public authorities. He is named by Chambers & Partners in both Competition Law and Administrative & Public Law.
Charles Livingstone

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