I attended a fascinating talk at St Catharine’s College in Cambridge earlier this week, organised by the University’s Bennett Institute for Public Policy, on ‘Saving the Union? Whitehall and the Scottish independence referendum’. The speaker, Philip Rycroft, who later went on to become Permanent Secretary at the now-defunct Department for Exiting the European Union, was Director General in the Office of the Deputy Prime Minister, Nick Clegg, from 2012 to 2015. Constitutional matters therefore fell within Rycroft’s, as they fell within Clegg’s, portfolio of responsibilities, placing him at the heart of the UK Government’s handling of the 2014 Scottish independence referendum. During his talk, Rycroft made frequent references to the diaries that he kept during that time, which will undoubtedly make for interesting reading if they are ever published — something the audience strongly encouraged him to do.
The point that struck me most powerfully, both in Rycroft’s talk and in his subsequent answers to questions (including one that I was able to ask), concerns the overarching approach of the ‘UK state’, as he put it, to matters constitutional. Rycroft painted a picture of staggering insouciance in relation to the constitution, describing a government machine that is culturally and structurally predisposed to treat the constitution generally, and the territorial constitution in particular, as a political afterthought. He illustrated this point in a range of ways — from his self-effacing acknowledgment that, through his role in the Deputy Prime Minister’s Office, he found himself dealing with a constitutional issue of existential importance while lacking any particular expertise in the area, to the vignettes he shared about momentous constitutional issues being dealt with as afterthoughts in the dying minutes of committee and Cabinet meetings more concerned with records management or the honours system. Rycroft attributed this casual attitude to the constitution to both civil servants’ lack of expertise and training in relation to how the constitution works and a (perhaps resulting) myopic culture that causes the constitution to be viewed by those at the heart of Government through a distinctly metropolitan lens. The result, he argued, is a governmental machine that is insufficiently attentive to the constitution generally and, most particularly, to the specific nuances (not to mention the often fiendish technical complexity) of the contemporary territorial constitution.
It was, of course, ever thus. The shortcomings identified by Rycroft are certainly not confined to a particular period of time or a specific political party. For one thing, the Scottish independence referendum itself took place on the watch of the two-party 2010–15 Conservative-Liberal Democrat coalition Government. For another, we need only look at the approach to constitutional reform adopted by Tony Blair’s Labour administration in the late 1990s and early 2000s — including the very casual way in which major constitutional changes, such as the abolition of the office of Lord Chancellor and the creation of the Supreme Court, were decided — to appreciate that the attitudes and approaches described by Rycroft cross political boundaries.
Rycroft’s diagnosis if the reasons underpinning the culture of constitutional casualness that prevails in central Government in the UK is compelling. But it is perhaps not the whole story. There is, in my view at least, a further — and highly consequential — issue in play: namely, the considerable ease, at least in legal terms, with which the constitution can be tinkered with, changed and radically reformed. When major constitutional change can be legally effected through legislation supported by a simple majority in an all-powerful Parliament, the temptation to rush rather than to reflect is inevitable. That Government actors whose political DNA is shot through with short termism born of electoral and news cycles often yield to such temptation is hardly surprising.
Rycroft touched, at least tangentially, on that point when he suggested that one of the factors that had complicated the Scottish independence referendum had been the absence of the sort of guardrails that a written constitution might have supplied. However, that argument, about the implications of the absence of a codified constitution, is one that ought not, at least in this context, be pressed too far. It is certainly not a foregone conclusion that such a constitution, had it existed, would have stipulated a mechanism or arrangements for the exit from the UK of one of its constituent parts; constitutions are, after all, generally exercises in state-building, not dismantlement. However, that point notwithstanding, it is, in my view, undoubtedly the case that the highly consequential culture and expertise-deficit described by Rycroft has its roots, at least partly and in general terms, in the ease with which the UK constitution can be changed — and in the related trope that the constitution does not matter, and does not demand the attention of politicians and officials, to the degree that a more formal set of constitutional arrangements might. The upshot, as Rycroft put it, is that the constitution ‘just isn’t up there in Whitehall’.
Rycroft’s talk, and his subsequent conversation with journalist and writer Peter Geoghegan, author of The People’s Referendum: Why Scotland Will Never be the Same Again, can be viewed online via the Bennett Institute’s YouTube channel. It is well worth watching.
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