We are all, I’m sure, familiar with Enoch Powell’s observation that “power devolved is power retained”. The phrase is now a commonplace in discourse around constitutional issues in general and Scotland’s devolution settlement in particular. It is often the case with such casually used aphorisms that familiarity breeds, maybe not contempt, but a certain disregard for any deeper meaning that might be contained in the phrase. Consideration of such ‘hidden’ meaning can be illuminating.
We may think it rather obvious what “power devolved is power retained” means. It reminds us that real power always resides with the party doing the devolving and never with the party being afforded the devolved power. Devolution is not the granting or bestowing of power. Devolved powers are not obtained, they are borrowed ─ invariably with strings attached. Devolution of powers implies no transfer of ownership. Devolved powers can be overridden or withdrawn with ease ─ particularly if the ‘superior’ in the transaction has no regard for democratic principles. In simple terms, power devolved is power retained.
On reflection, however, does this not imply two different kinds of power? There is devolved power, which is always conditional and retractable, then there is what we may call sovereign power, which is unconditional and enduring.
The language of the Scotland Act makes abundantly clear the status of the powers devolved to the Scottish Parliament. Section 28(7) states:
This section does not affect the power of the Parliament of the United Kingdom to make laws for Scotland.Scotland Act 1998
Section 30 of the Scotland Act, widely believed to be about the Scottish Parliament being loaned the power to hold an independence referendum, is actually intended to give the British state sweeping powers to make any modifications of devolved powers which are considered “necessary or expedient”. But the attitude of the British state to devolution is perhaps nowhere better expressed than in an amendment moved by Michael Ancram (Conservative) in a House of Commons debate on the Scotland Act.
Notwithstanding the establishment of the Parliament, or anything contained in this Act, the supreme authority of the Parliament of the United Kingdom shall remain unaffected and undiminished over all persons, matters and things in Scotland.Hansard
That reference to the “supreme authority” of the British parliament “over all persons, matters and things in Scotland” reeks of imperialist arrogance and perfectly describes the attitude that continues to be evinced by all the British political parties, not only the Tories. It hardly matters what powers are devolved to the Scottish Parliament, sovereign power is asserted by the British parliament.
This distinction between devolved and sovereign powers has a number of implications. Perhaps most importantly in relation to the fight to restore Scotland’s independence is the fact that a devolved power can never be used to create a sovereign power. Sovereign powers cannot derive from devolved powers operating under the constraints of the terms on which the power was devolved. Were it otherwise, devolved power would tend inevitably and irresistibly towards sovereign power. It is in the nature of power that it always seeks increase. Devolution is thus a constitutional device by which any tendency towards the sovereign powers associated with independence is thwarted.
In this concept of devolved and sovereign powers we find a corrective for much of the ‘old thinking’ within Scotland’s independence movement. For example, the idea of ‘gradualism’ looks rather different when one realises that according to what appears to be a ‘iron law’ of constitutional tinkering, no amount of devolved power can ever translate into independence. No matter what powers are devolved to the Scottish Parliament, they can never become or create sovereign power. So long as the powers of the Scottish Parliament are bound by the constraints of a devolution settlement ─ no matter how superficially generous ─ independence can never ensue from adding new devolved powers.
This is not to say that the gradualism espoused by the SNP under Alex Salmond’s leadership was a bad idea. Increasing the powers of the Scottish Parliament is generally a good thing. There is always the danger that people will come to believe that the devolution settlement is sufficient. But apart from that, gradualism is beneficial as far as it goes. It just doesn’t go far enough. It never can. The nature of the Union prohibits Scotland from ever having sovereign powers. The Union was instituted for the purpose of ensuring that England and subsequently England-as-Britain, had an overwhelming advantage in all bilateral interactions between the two nations. This is not and never was a partnership of equals.
A further implication of the distinction between devolved and sovereign powers is that the Section 30 process can never lead to the restoration of Scotland’s independence. The power to hold a referendum is devolved by a Section 30 order. A devolved power cannot create a sovereign power. Ergo, nothing done under the powers of a Section 30 order can possibly restore to Scotland the sovereign powers of independence. A Section 30 referendum can have no effect. The Union forbids it and devolution serves the Union, not Scotland.
The unavoidable conclusion is that if the terms of the devolution settlement act to prevent the reestablishment of Scotland’s rightful sovereign powers, then in order to restore those powers it will be necessary to breach the terms of the devolution settlement. The ‘iron law’ that sovereign powers cannot derive from devolved powers necessarily implies the need for #ScottishUDI.
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