Sovereign powers and devolved powers

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 Devolved powers can be overridden or withdrawn with ease ─ particularly if the ‘superior’ in the transaction has no regard for democratic principles.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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13 thoughts on “Sovereign powers and devolved powers

  1. Very clear Peter – and I agree that UDI is one route, who will do the declaring though ? – I would, you would, anyone doing it would be ignored. Unless the entire sovereign Scottish people do the “declaring” bit of UDI then we’re more than slightly buggered. I think the answer MAY lie in converting Holyrood from a devolved parliament , devolved that is from Westminster, into a true parliament of the Scottish people by unambiguously asserting in their manifestos for the next HR election that a majority of seats in HR of independence supporting parties means that the sovereign Scottish people lend that sovereignty to the Scottish Parliament, and instruct that parliament to declare independence. Thus Holyrood is transformed, via the expressed will of the sovereign Scottish people, from a wee pretendy parliament which exists at Westminster’s whim, into an empowered national parliament with the power to do the awkward “declaring” bit.

    Liked by 2 people

    1. That’s what should have happened last year. The 2021 Scottish Parliament was probably the last chance we’ll get to assert the primacy of the Scottish Parliament. That is why it was so important that the Yes movement combine to force the SNP and other pro-independence parties to adopt the #ManifestoForIndependence. But, as you know, the Yes movement thought it had better things to do. How has that worked out?

      I said in the run-up to the 2021 Holyrood election that there would never be another election to the Scottish Parliament as we know it. Either we elected a Scottish Government and Parliament committed to the #ManifestoForIndependence so that the next elections would be to the Parliament of independent Scotland. Or we failed and looked forward to a future of elections to a Scottish Parliament largely stripped of its powers. That is now what is going to happen. Because that is what the Yes movement chose.

      If you are thinking in terms of the next Holyrood elections then you simply don’t grasp the magnitude of the threat to Scotland’s democracy posed by the virulent British Nationalism that pervades all the British political parties and the entire British establishment.

      If you are thinking in terms of a ‘supermajority’ then you are clinging to the fantasy politics which, along with blind faith, is largely to blame for the abysmal failure of the Yes movement. It is NOT just the SNP that has failed Scotland’s cause. It is the entire independence movement. Yes! The SNP is the party of government! Yes! It has totally lost the constitutional plot! But WE let that happen. And WE refused the chance to put things right last year.

      It is now perfectly clear to me that Scotland’s independence will only be restored by a Scottish Parliament which has asserted its competence in constitutional matters. It is plainly obvious that this can only be done at the behest of the SNP/Scottish Government. There is little chance that the SNP/Scottish Government will do what is required absent a MASSIVE public outcry. There is even less chance that the Yes movement will combine sufficiently to exert the necessary pressure.

      Independence was within our grasp. It is slipping away with every passing day. And NOBODY is doing anything about it or proposing to do anything about it or planning to do anything about it.

      Liked by 1 person

  2. You have to wonder how much the “gold standard” bullshit has damaged perception of the rights of the people of Scotland. A concession that no politician has the power to make and a stick for the unionists to beat us with.

    Liked by 1 person

  3. From the twitter feed at the RHS of the page:

    “#ScottishUDI Get used to the idea.”

    Load of rubbish of course, or at least it was till the UKSC decision watershed.

    Keep it simple; if it keeps UDI subconciously in mind, it makes it potentially more acceptable, something to think about in a passive way.

    Like

  4. We seriously need to build” locus standii” to take our case to the World Court as was ( now the ICJ) . UDI won’t get us anywhere absent international recognition . We might get some friendly UN member state/s to plead our case but we’d better get on with building both domestic and international support for liberation with urgency .

    Liked by 1 person

    1. Under the title “The Declaration of a Sovereign Scot” an initiative with initial contact with the UN started well over a year ago, and continuines to this day – as Sovereign Scots (at every rally all across Scotland since it started) have signed their individual Declarations which have then been lodged with the UN – and in letters accompanying each batch issued relevant issues have been raised. (Self detrmination, nuclear weapons, territorial integrity and more.)

      Link, as an example:

      https://www.thenational.scot/news/19424544.i-sovereign-scot-declaration-yes-hit-un-aware-project/

      Liked by 1 person

      1. That link, as you will see, is itself well over a year old. Since then, there have been changes and developmemts, and a large growth in support.

        And to clarify, I do NOT expect the Sec/Gen of the UN (an example of a bureaucracy writ large) to inform all 193 Members of the initiative – that is part of Stage 2 in the intiative, with contacts being established with individual Member States.

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  5. I’ve always liked Michael Settle’s thought provoking articles in the Herald:

    “(One member of the SNP’s executive committee): “It can’t be denied the SNP has become a party of zero tolerance; not of wrongdoing but of any criticism of their actions.”

    I think it’s part of the reason for “strong” reactions against them. It’s even beginning to piss me off, having my feet slobbered on by miniature rottweilers.

    https://www.heraldscotland.com/politics/23168306.clear-out-snps-old-guard-long-time-coming/

    Like

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