Legislative devolution isn't working. Since its inception, its proponents have insisted that it would be a very positive thing for Britain. They said it would simply be 'autonomy within the UK' and would strengthen the country by eliminating nationalism (forever, we were told). This simply hasn't happened. Legislative devolution has proved to be an impracticable, unfair Frankenstein's monster that has been hijacked by nationalist elements and been pushed way beyond its legal remit to the point that it now seriously threatens the integrity of the UK.
It was either naivety or ignorance (or perhaps a mixture of both) that led the then Labour government of the late 90's to think that legislative devolution could be contained within pre-defined limits. They believed that, as Labour had been the dominant power in Scotland for the previous thirty odd years they would continue to control the newly-created Scottish parliament in perpetuity. How mistaken they were. Many people, both inside and outside Parliament, warned them that legislative devolution could not be contained and would not act within its remit and boundaries. They knew that it would inevitably expand its limits, break its constraints and lead to independence, but the political leadership didn't listen.
In all the devolved executives around the UK a slow, steady process of expanding their devolved remit was began by the nationalists. What’s more, the so-called 'unionists’, of all political persuasions, Labour, Conservative and Liberal Democrat, did virtually nothing to stop this process. The result was that legislative devolution has been totally hijacked by nationalist elements and developed completely beyond its original boundaries. Indeed, the nationalist-led, or influenced, administrations around the UK (and their sympathizers in other parties) have deliberately interfered in reserved matters that they are simply not supposed to, like foreign affairs and, most importantly, the constitution. Ultimately, this has been utilized as a device to instigate a referendum on independence in Scotland which was a direct threat to the UK's integrity. In Wales, similar anti-British cliques have forced an unwanted (by the public) referendum on granting more powers to the Welsh Assembly.
Legislative devolution has been a disaster everywhere it has been introduced. It has simply ignored its boundaries under the original devolution acts and gone on to act in a patently illegal way. Scotland is a prime example of this. Under the terms of the Scotland Act 1998 (the act that originally set up the Scottish Executive) the newly created Scottish parliament was to have limited powers. The subsequent 2012 Act added the following to the remit of Holyrood:
* Power over income tax which could be varied, up or down, by 10p in the pound. All changes were to be applied equally across all tax bands.
* A few other minor tax powers.
* Control of stamp duty and landfill tax.
* The power to borrow up to £2.2 billion a year.
* Scottish representation in the BBC and Crown Estate was also guaranteed by the Act.
* Legislative control over several more issues, including limited powers relating to drugs, transport (driving) and firearms.
* The Act prompted the setting up of a Scottish tax authority, Revenue Scotland, which replaced HMRC (only for devolved taxes).
This list will be massively expanded by the Scotland Act 2016, when it's passed. This act added the following new powers to the Scottish executive:
* The power to amend any sections of the Scotland Act 1998 which relate to the operation of the Scottish parliament and the Scottish executive within the UK, including control of its electoral supply system (this must have a two thirds majority in Holyrood to pass).
* Legislative control over areas relating to such transport matters as road signs and speed limits, awarding rail franchises, oil and gas extraction (onshore only), consumer advocacy and advice amongst others by devolution of powers in relation to these fields to the Scottish parliament and Scottish ministers.
* Crown Estate management, control over the British Transport Police and Ofcom Scotland.
* Control over certain removable taxes including Air Passenger Duty and Aggregates Levy.
* Control over some elements of several housing and welfare related benefits as well as Disability Living Allowance, Personal Independence Payment, Attendance Allowance and Carer's Allowance.
* The ability to set Income Tax rates and bands on non-savings and non-dividend income.
* Extended powers over Employment Support and Universal Credit.
*The right to receive half of the VAT raised in Scotland.
Nicola Sturgeon is well aware that it is illegal, under the provisions of the UK Parliamentary Acts that granted Scotland devolution, for the First Minister and the devolved Scottish parliament to interfere in either the British constitution or foreign affairs. Also, under the recent Smith Commission Report recommendations it is made crystal clear that the UK Parliament retains full control over both matters. It is now abundantly clear that Holyrood, under the SNP, has absolutely no intention of keeping to this legal requirement.
Successive SNP governments have simply ignored the legal terms of devolution and tried to manipulate any situation to facilitate their goal of breaking up the UK at all costs. Even the Scottish 'Conservative and Unionist Party', under Ruth Davidson, has recently called for the clearing of the constitutional barriers to holding more independence referenda. The devolution 'settlement' isn't working as nobody in Holyrood, or Cardiff Bay or Stormont works within the framework of devolution, with the result that Scotland, Wales and Northern Ireland are drifting towards separation by slow, incremental steps. I therefore assert that in order to address this, a thoroughgoing review of the whole devolution system be undertaken and there must be no devolution of further powers.
Despite the constitutional and legal bars to it, if Sturgeon does hold an illegal independence referendum, it is my view that Theresa May should stop procrastinating and demand that the Scottish executive should either stay within its devolved remit or be dissolved. It's quite clear that they won't act with propriety, so if they act illegally this should be the cue for May to sack Sturgeon. This will send a strong message to nationalists all over the UK, including Wales and Northern Ireland, that they should respect democracy or expect to suffer the consequences.
In the other two parts of the UK, the Province of Northern Ireland and Wales, a similar, if slightly less accelerated process of legislative devolution is expanding outside of its intended remit and becoming a very real threat to the integrity of the UK.
It’s easy to see from the above examples that legislative devolution is impossible to control and for it to be contained as 'autonomy within the UK'. In the event of Sturgeon launching an illegal second referendum, what's needed is for Theresa May to suspend the Scottish parliament and to temporarily return its powers to the relevant minister and initiate a thoroughgoing review of the entire Blair constitutional 'settlement’. The only realistic solution to the current farrago is to decentralize and localize power whilst maintaining the Union by replacing legislative devolution with the administrative kind.
© 2016 Stephen Bailey.