However normal it may be for “sub-state governments” elsewhere to engage in foreign policy, under the Union the concept of devolved foreign policy is oxymoronic. There are certain competences which, once they become vested in a devolved parliament, necessarily mark a transition to independence. Under the Union, there are competences which cannot be devolved without fatally undermining the principle of parliamentary sovereignty which underpins the Union. The constitution would be the most obvious example. Any parliament which has full powers over the constitution can only be the parliament of an independent nation. Such powers cannot simultaneously be vested in two parliaments. By default, they reside with the parliament having the greatest democratic legitimacy. If that parliament can be overruled by a parliament with lesser democratic legitimacy then democracy is denied.
Foreign policy may be another area which can only be the province of the parliament of an independent nation. We can see this by taking what may be the most extreme yet still credible scenario which might arise in practice. War! Can the “sub-state government” declare war? If war is declared by the ‘parent’ state, can the “sub-state government” opt out? If the answer to either or both of these questions is in the negative then the “sub-state government” does not have power over foreign policy. It is not devolved. It is reserved. If the answer to either or both of these questions is in the affirmative then the “sub-state government” has competence which the principle of parliamentary sovereignty dictates can only be vested in the parliament of an independent nation.
Devolution must not be thought of as a form of limited independence. Independence cannot be limited. If it is limited, it is not independence. If a nation is independent then that nation’s people alone are the ultimate source of legitimate political authority. Only the parliament elected by the people can act with the authority of the people. Devolution is a constitutional device by which to prevent a nation being independent. It is not enabling. It is constraining.
As Enoch Powell observed, power devolved is power retained. It must be so. Because real power is never given. Real power is only taken. The notion of devolving (giving) power is therefore nonsensical. By devolving (granting) power the ‘superior’ state acknowledges the sub-state’s right to that power. Then withholds the power. It’s not what is given which defines devolution but what is taken away. Devolution takes away independence.
There is only one way by which the Scottish Parliament might have power over either the constitution or foreign policy and that is by taking that power. As soon as the Scottish Parliament asserts its supremacy in relation to the constitution then the Union ends. Asserting ultimate authority in the area of foreign policy might not be quite such a clear-cut declaration of independence – but it’s not far from it.
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