The only viable and permanent way to end the never ending toxic constitutional vandalism with its resultant severe political upheaval and severe social division so maintaining the Union is to abolish the mechanism that enables these phenomena to flourish-legislative devolution (Holyrood, the Welsh ‘parliament’ and Stormont). That can only be achieved after the democratic consent of the majority of Scots has been granted via either a win by a party at a UK General Election on a manifesto promise to end legislative devolution or a referendum. That being said, the devolved legislatures will still exist for some time and the abuse of the legislative devolutionary ‘settlement’ (a misnomer as it has not settled anything and has to the contrary introduced severely unsettling constitutional (political) and social upheaval and division) by anti-UK separatism, especially, but not exclusively, the SNP in Scotland, in which they constantly flout the rules as set out in the 1998 and subsequent devolution acts still goes on and needs to be addressed. New Labour’s legislative devolutionary constitutional arraignments have failed miserably to produce a viable, settled, stable United Kingdom as it’s just enabled anti-UK separatism to rise to power, displacing pro-UK political parties and spend nearly two decades in the SNP’s case ignoring their devolved remit pushing for separating their part of the UK from the rest of the country against the will of the majority. What can be done about this?

One way, an oversight committee based at Westminster (the Commons or Lords) that can examine legislation created by the devolved legislatures to see if it complies with their devolved remit and send it back for revision or veto it if necessary, has already been fully looked into in the following article: https://www.facebook.com/100015202299811/posts/2023342961515761/ 

Another is to take back powers from devolved legislatures that misuse them. This process is entirely constitutional and has been applied before.

Before going into that, let’s first take a look at how legislative devolution works, as decided by the New Labour Government of Tony Blair nearly three decades ago now.

The current legislative devolution ‘settlement’ in Scotland, Ulster and Wales is based on the ‘reserved powers’ model. This means that UK primary legislation lays out which matters the UK Parliament (Westminster) reserves sole responsibility for. In these instances , only Westminster can draw up and pass onto the Statute Book legislation on such matters and the resultant legislation applies across the entire UK. If a policy area is not listed as reserved, it usually means it has been devolved.

Different policy areas are devolved for different parts of the UK. The relevant schedules of the Scotland Act 1998 (schedule 5), the Government of Wales Act 2006 (schedule 7A) and the Northern Ireland Act 1998 (schedules 2 and 3) only say what the devolved legislatures cannot legislate on not what they can do.

Even under the current arrangements, the legislative devolution settlement can change and has done so on several occasions in the past as they are not fixed.

Since the initial acts of devolution were passed at the end of the Twentieth Century, many new powers have been added to the devolved list and authority over them have been transferred to the legislature in the relevant part of the UK.

For example, since 1999 the Scottish Parliament has taken over policy areas which were originally reserved to the UK Parliament, such as aspects of welfare and income tax. Such substantial tranches of power were made in 2012 and 16.

In Wales, the Wales Act 2014 devolved fiscal powers to the National Assembly for Wales for the first time, implementing the majority of the recommendations made in the Commission on Devolution in Wales first report ‘Empowerment and Responsibility: Fiscal Powers to Strengthen Wales’. The Act included conferring legislative competence on the then Assembly to replace stamp duty land tax and landfill tax in Wales, providing new capital borrowing powers for the Welsh devolved administration spokespeople and providing for the devolution of a portion of income tax.

The Wales Act 2017 made further changes to the legislative devolution settlement for Wales, implementing the UK Government’s recommendations in the Command Paper ‘Powers for a Purpose: Towards a Lasting Devolution Settlement for Wales’ (known as the St David’s Day Agreement) that required legislative changes. This included putting in place a reserved powers model of devolution for Wales, and devolving further powers to the Assembly and Welsh devolved administration spokespeople in areas such as elections, transport, energy, and the natural environment.

In Ulster, the Northern Ireland Act 1998 was amended a number of times since 1998, particularly following the 2006 St Andrews Agreement.

But here’s the point.

In rare cases, previously devolved matters have become reserved, such as regulation of activity in Antarctica and state aid, admittedly rather obscure examples, but it proves the point-it is within the existing constitutional settlement for Westminster to take back any devolved powers into reserved status if it deems such a move necessary.

To illustrate this, as with the Scotland and Wales Acts, the Northern Ireland Act 1998 made provision for the transfer of powers, section 4 stating that if ‘it appears to the Secretary of State’ that ‘any reserved matter should become a transferred matter’ or ‘that any transferred matter should become a reserved matter’, then he could lay before Parliament a draft Order in Council amending Schedule 3 ‘so that the matter ceases to be or, as the case may be, becomes a reserved matter with effect from such date as may be becomes a reserved matter with effect from such date as may be specified in the Order.’

Over the last nearly three decades of legislative devolution it has been shown time and time again that the constitutional ‘settlement’ devised by New Labour just hasn’t worked as it should and has failed to produce a viable system for the constituent parts of the UK. It has settled little and the U.K. has gone from being a mature, stable democracy that was envied around the world to an unstable, balkanised hodgepodge of warring statelets and simply introduced highly toxic social division as well. The SNP in Scotland are the arch villains in propagating this mess, though the anti-UK separatists in Ulster and Wales are in no way blameless. Without this being addressed, the UK will continue down the current path of constitutional anarchy and the end result could very likely be the dissolution of the UK. As previously stated, abolishing legislative devolution will permanently solve this situation, but in the meantime, let’s ensure anti-UK separatism fails in its push to break up the UK by taking away powers from them that the won’t exercise with responsibility and also removing its ability to pass bad laws.

Sources:

Legislative devolution law in general: https://researchbriefings.files.parliament.uk/documents/CBP-8544/CBP-8544.pdf

Scotland: https://www.gov.uk/guidance/devolution-settlement-scotland

Ulster: https://www.gov.uk/guidance/devolution-settlement-northern-ireland

Wales: https://www.gov.uk/guidance/devolution-settlement-wales

(Does not necessarily represent the view of Scotland Matters)