In this article, we examine what is meant by the phrase "the devolution settlement"; why this particular form of "settlement" is wrong from a unionist perspective; and how it can be improved to properly reflect the true Unitary Nation-State nature of the United Kingdom.
When politicians speak about "the devolution settlement" they are referring to the particular Model of devolution which is used for Holyrood.
To illustrate what we're talking about, let's use the example of the 111 powers which will be coming back to the UK after we leave the EU, but which the SNP (and others), want automatically to go to Holyrood.
What should be happening with these powers?
From a unionist perspective, the presumption should always be that any powers will go to our central, collective, national British Parliament. It can then decide which ones are appropriate to devolve, if any.
To do otherwise – to presume that the devolved administrative unit (Holyrood) is entitled to automatically acquire those powers – is to refute the unionist position, which is that the United Kingdom is a Unitary Nation-State, in which there is a one central, collective, national British Parliament in which all powers are vested and from which all powers flow in the first place!
We spoke about that in our article on how the SNP administration is not a "Government". We spoke about how Holyrood is a devolved administrative branch of the one British Parliament and Government, in a vertical not horizontal, hierarchical not level, relationship.
However, the SNP (and others) are saying that the presumption is that all powers should be immediately given to Holyrood and that it would be wrong for the British Parliament to then "take back from Holyrood" certain powers (which the SNP refer to as a "Power Grab").
Why is there a presumption in favour of Holyrood – a devolved and administrative arm of the British State – instead of a presumption in favour of the central, collective, national British Parliament from whom all powers are meant to flow?
The reason is because of the particular Model which is used for devolution.
The FLAWED "RESERVED POWERS" MODEL of DEVOLUTION
True to form, the British Government at the time (Labour) produced the very worst kind of devolution Model – a Reserved Powers Model for Holyrood. Furthermore, the Conservative Government has recently instituted this flawed Model for the Welsh Assembly!
A Reserved Powers Model means: Everything is Devolved to the administrative unit (Holyrood) except that which is specifically written down as Reserved to the central British Parliament at Westminster.
The Reserved stuff is written down specifically, and absolutely everything else is considered Devolved.
Everything is Devolved except that which is written down as Reserved.
The over-riding presumption is that everything is devolved unless stated in writing otherwise!
Crucially, this Model includes the devolution of things which have been forgotten about, things which are not even known about and still to come, and things like these returning powers from the EU.
When politicians speak about the "devolution settlement", that is what they are speaking about.
They are referring to the Model of devolution which is being used; in this case, the presumption that everything is devolved to Holyrood except that which is explicitly written down as reserved to Westminster.
The PROPER and STABLE "CONFERRED POWERS" MODEL
The proper Model, the only sensible and stable Model for devolution – if a central Unitary State is genuinely intent on maintaining its authority – is to use a "Conferred Powers" (sometimes called "Devolved Powers") Model.
This is the opposite of the above.
A Conferred Powers Model means: Everything is Reserved to the central British Parliament at Westminster except that which is specifically written down as conferred (devolved) to the administrative unit (Holyrood).
The Devolved stuff is written down specifically, and absolutely everything else is considered Reserved.
Everything is Reserved except that which is written down as Devolved.
So the over-riding presumption would be that everything is reserved unless stated in writing otherwise!
The reserved stuff includes things which have been forgotten about, things which are not even known about and still to come, and things like these returning powers from the EU.
This is the only safe, pro-union Model of devolution.
This is the only Model which accurately reflects the true nature of a Unitary Nation-State; that is, a State which has one central, collective, national Parliament in which all powers are vested and from which all powers flow in the first place.
This is the only Model which can help to ensure the central Parliament remains the font of all political power. This is the only Model which can hold a Unitary State together.
Needless to say, of course, this sensible Model was abandoned in the Scotland Act 1998 for the very worst kind of devolution Model.
The "Everything is presumed to be Devolved unless we've written it down as Reserved" Model.
The "We're Giving Everything Away Except that which we Remember to Write Down" Model.
This MEANS THERE is NO 'SETTLED' SITUATION – THERE is ONLY INSTABILITY
In reality, the flawed "Reserved Powers Model" leads to perpetual instability!
Its very nature constantly undermines the central national Parliament.
We can see that every day. What we have now is not "settled" in any sense. Indeed, what we have now is – by its very nature – unstable.
It is unstable because the extent of the devolved power has not been limited to that which is specifically written down. It has been left wide open and free to expand by itself...even into areas which were not even thought about, or known about, when the legislation was first drafted.
By its very nature, it's like an unstable gas, constantly trying to expand and embrace new areas of power, to the detriment of the centre.
In this case, it is trying to expand into the areas of power which are only now becoming apparent, such as the returning EU powers.
If devolution had been done properly, this would never have happened.
If devolution had been done properly from the start, with a Conferred Powers Model, then there would be no question where these returning EU powers would lie. The presumption would be that they lie with the British Parliament until such time as it chooses to confer them to Holyrood, if ever.
We MUST CHANGE the DEVOLUTION MODEL
At the very least, a proper Unionist Government would reverse the Model. It would state that the new legal presumption was that everything was reserved to the central British Parliament at Westminster unless specifically written down to the contrary.
It would state that a Conferred Powers Model of Devolution is the only Model consistent with the idea of Britain as a Unitary Nation-State.
We would then have a Model of Devolution where absolutely everything was presumed – indeed known – to be reserved, and only that which Westminster wrote down would be devolved.
That would mean Holyrood would find it much harder to constantly push its power into new areas because its areas of concern would be strictly limited to that which is listed on paper as devolved; rather than at present where there are no such confines, and it can continually expand.
When new areas of power were discovered, or released, or won, or created, then everyone would know where that power would be properly vested. There would be no dispute. It would naturally be presumed automatically to lie with the central, collective, national British Parliament!
Everyone would know where we stand. It would confer a degree of stability. It would confer a genuine "settlement".
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