How to Do Devolution Properly

Renovations to St Enoch underground station, Glasgow 1977

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There is a difference between 'Administrative Devolution' and 'Legislative Devolution'. The current Scotland Bill is an example of the latter. In this article Alistair McConnachie explains the difference and shows that Administrative Devolution worked well for Scotland during the entire 20th century.

He says that if Scotland is to avoid complete SNP domination, then some of the Scotland Bill should be devolved 'administratively' into the hands of the Scottish Office dealing directly with Local Councils, rather than 'legislatively' into the hands of the nationalists at Holyrood.

This will ensure that the electorate in Scotland is better served democratically; it will establish a more effective constitutional balance of powers which will protect the electorate; and it will tend to prevent the dangerous possibility of Scotland becoming a One Party State.

Furthermore, building up the Scottish Office will help to put the British Parliament back at the heart of Scottish political life and local affairs again. It will help to re-establish the centrality of the wider British Context; and to make relevant once more the rest of the UK, and all its people, to Scotland.

You can click on any of the links below to jump to the appropriate part of the text, and back again.

What Can Be Done?
Look what was Achieved under Administrative Devolution
Effective Administrative Devolution – The Example of Tom Johnston
4 Ways to Do Devolution Properly
The Benefits: Better Democratic Representation and Constitutional Balance of Powers
It puts the Scottish Office, and British Parliament, Back at the Heart of Scottish Political Life
Using the Example of Crown Estate Devolution

Photograph: Contrary to SNP propaganda, it is not necessary to have Legislative Devolution for anything to get done in Scotland! Here, we see extensive renovations to St Enoch underground station, Glasgow, in 1977. The ornate ticket office is still standing.

Posted on this site on 24 August 2015.

There are two kinds of "devolution". There is "Administrative Devolution" and there is "Legislative Devolution". Throughout the 20th Century and prior to 1999, Scotland had a large degree of Administrative Devolution.

Firstly, definitions: 'Devolution' refers to the transfer of either, all, or a combination of, administrative, legislative or executive power to institutions which are part of a larger State.

'Administrative' means the process of operating and managing laws and affairs. 'Legislative' means the process of making new laws. 'Executive' means the process of enforcing the laws.

Administrative Devolution is defined as the transfer of powers to operate and manage those laws and affairs which are regulated by the centre. It does not confer any right to make new laws, although it may include the power to enforce the existing laws.

Legislative Devolution is the transfer of powers to create new laws, and may include the power to enforce these new laws.

Scotland has had a form of Administrative Devolution since 1885 when the post of 'Secretary for Scotland', and the Scottish Office, were both created. From 1892 the Secretary for Scotland sat in Cabinet, but the position was not officially recognised as a full member of the Cabinet until the Secretary for Scotland post was upgraded to 'Secretary of State for Scotland' in 1926.

This form of devolution is essentially what Scotland had during the entire 20th century. It works and it works extremely well, as we shall show by example in this article. It was Administrative Devolution which created virtually the entire infrastructure of Scotland which we know today.

In effect, what happened was that the British Parliament would pass a law for Scotland, and it would be left to the Secretary of State for Scotland, the Scottish Office, the civil servants and the Local Councils, working together, to get on with the job – whether that was building New Towns, Power Stations, Roads, Bridges, or administering Hospitals, Police, Education and so on.

The Administrative Devolution which Scotland had prior to 1999, kept the UK together as a Unitary State. However, it did not satisfy the nationalists. They wanted the power to make new laws, based largely upon their concept of the Scots and Scotland as a different, distinct and separate people and country from the rest of the United Kingdom.

Post-1999, after the establishment of the Scottish Parliament, Scotland has had, and is acquiring, a large amount of Legislative Devolution.

This form of devolution in intended to appeal to those for whom being able to operate and manage laws and affairs set at the centre, is not enough.

It is intended to appeal to those for whom their primary political motivation derives from a sense of themselves, and Scotland, as different, distinct and separate from the rest of the UK.

Those of us who do not see ourselves in this way, are concerned about the general direction that these people – aided and abetted by the Scotland Bill – are taking us.

The Scotland Bill – currently going through the British Parliament – is creating a massive new raft of Legislative Devolution, intended to appeal to the Scottish nationalist politics of difference, identity and separateness, and which in its present form will continue to imperil the stability of the overall British State.

This would be bad at any time, but at this time these new powers are being gifted directly into the hands of a parliament which is nationalist-dominated and which is likely to remain so for the foreseeable future. This parliament will use such powers in its on-going attempt to break away from the central British State.

In this article we argue that – if there is any devolving to be done then there are areas where the powers should not be devolved directly to Holyrood, but rather retained by the British Parliament, via the Scottish Office, and Administratively Devolved directly to the Local Councils.

This means the relationship is directly between the Scottish Office and the Local Councils, thus bypassing Holyrood.

Imagine it this way: If we think of the British Parliament as 'A', Holyrood as 'B', and Local Councils as 'C', then Administrative Devolution is a relationship between A and C. However, Legislative Devolution is a relationship between A to B, and then from B it becomes a relationship between B and C, and this can allow B to exclude A from any further deliberations.

Before we expand upon this idea, let's take a step back and…

It seems unnecessary to have to say it, but let's remember that almost all of Scotland's infrastructure in use today, was created prior to 1999. It was all created under a form of Administrative Devolution; without the need for any Legislative Devolution.

It is worth pointing these things out because if you are an 18 year old today, you have lived your entire conscious life under a Scottish Parliament. Perhaps you wonder how things actually got done prior to 1999? Well, life went on perfectly well; and in many cases better!

For example, post-war...

"Housing" is now devolved to the Scottish Parliament. However, there was never any problem building houses under British Parliament authority.

5 New Scottish Towns
The New Towns (Scotland) Act 1946 was brought in under Clement Attlee's Labour government of 1945-51, and it designated that new towns would be built in Scotland. These became:
East Kilbride (designated 6 May 1947).
Glenrothes (designated 30 June 1948).
Cumbernauld (designated 9 December 1955) under a Conservative administration.
Livingston (designated 16 April 1962) under a Conservative administration.
Irvine (designated 9 November 1966) under a Labour administration.

We didn't need an army of over-salaried MSP busybodies, and their hangers-on, to build these places; and truth be told, we don't actually need them now. We didn't need a Scottish Parliament to create entire, fully-equipped, new large centres of population, including hospitals, schools and emergency services.

All we needed was a Secretary of State for Scotland who said, "Let it be Done", and lo, the people on the ground got on with the task and it was done.

Energy is a reserved matter, but in the usual botched manner of devolution, 'planning' was devolved. This means that the nationalists can prevent vital energy development, needed for all of Britain, by refusing planning permission. This is a form of stealing the rightful inheritance of energy resources which belong to all British citizens – as we said in our speech on 18 June 2015.

It also gives the SNP the ability to continue to masquerade and impersonate its way to creating an alternative to, and replacement for, the British State, by appointing a 'Minister for Enterprise, Energy and Tourism', which it did as soon as it took power in 2007 – thereby deliberately confusing people as to what is, and is not, devolved.

However, here are a couple of examples which indicate what can be done without a devolved competence in planning, or energy.

On 15 October 1965, the world's first-ever 'Reversible-turbine Power Station' – The Cruachan Dam – was opened by the Queen, in Argyll. Four enormous turbines are built inside a mountain, half a mile underground. This was during the Labour administration of Wilson, although work began prior to 1964 when it took power.

We didn't need anything 'devolved' to Holyrood to pull that off. Again, we just needed a Secretary of State for Scotland to say "Let it be done" and a Scottish Office to coordinate it.

Imagine trying to get that idea through Holyrood today? We'd all still be talking-and-arguing-about-it in 100 years! As it is, this colossal achievement is still working and supplying power for us right now.

The Dounreay Nuclear Power Development Establishment, and power station was established in 1955, in Caithness, primarily to pursue the British Government policy of developing fast breeder reactor technology. It was a massive technological advance, and it started supplying power to the National Grid from 14 October 1962. This period fell under Conservative administration.

The building of Motorways throughout the UK began in the late 1950s, under Conservative administration. All the substantial dual carriages and motorways in Scotland were completed prior to 1999 and the advent of Holyrood.

The A9
The A9 is a major road running from the Falkirk council area to Thurso. At 273 miles, it is the longest road in Scotland and the fifth-longest A-road in the UK. Historically it was the main road between Edinburgh and John o' Groats, and has been called the Spine of Scotland. The 138 mile section between Bridge of Allan and Inverness, via Perth, was substantially rebuilt during the 1970s, '80s, and early '90s – all prior to 'devolution', and during both Labour and Conservative administrations.

The M74
The A74 was the original route from Glasgow to Gretna, where it met the A6 south to London. Starting in the 1930s, the single-carriageway road between Gretna and Glasgow was progressively upgraded to dual carriageway, being completed in the early 1970s with the completion of the Gretna bypass.

The M8
The first section was opened in 1965, and the Glasgow inner city section was built between 1968 and 1972. The massive Kingston Bridge, which carries the M8 through the city was opened on 26 June 1970 by the Queen Mother. All of this was done during the Labour administration of Wilson (from 1964) and the Conservative administration of Heath (from 1970).

Most of the motorway's length was complete by 1980. Since then, there has been a new interchange with the M80 in 1992, and a 4-mile extension from Newbridge to the Edinburgh City Bypass in 1995, all prior to 'devolution' and under Conservative administrations.

The Forth Road Bridge
The Forth Road Bridge was opened on 4 September 1964 and built during the Conservative administration of 1957-64.

There are other examples, all around us, of feats of engineering and socially valuable constructions which were simply 'done', in Scotland. That is to say, coordinated by the British Parliament, the Secretary of State for Scotland, the Scottish Office, civil servants and Local Councils, and not one of which needed a single 'MSP'.

Indeed, it is possible that if there had been this additional level of debate, the above things may never have got further than the talking-and-arguing-about-it stage.

Even the new Forth Road Bridge, which is being built under a legislatively devolved administration, or the Waverley railway line extension – could have been built just as easily under Scottish Office direction. They are exceptions which prove the rule.

The journalist Lesley Riddoch is a Scottish nationalist, but in one of her articles in 2013 she inadvertently demonstrated that Legislative Devolution is not at all necessary for the good government of Scotland, and nor is independence.

She was speaking about the Labour MP, Thomas Johnston, Secretary of State for Scotland during WW2 (between 8 February 1941–23 May 1945) and well known as a left-winger.

Although Johnson is said to have supported 'Home Rule', his achievements in office further demonstrate that – providing you want to get things done – it is not necessary to have a Scottish Parliament at all! A Secretary of State can simply ensure there is sufficient Administrative Devolution in the areas which require it. Extract follows>

Johnston is principally remembered as an outstanding Secretary of State for Scotland in the wartime coalition under Churchill. During four short years with "the powers of a benign dictator" – according to historian Tom Devine – Johnston brought electricity to the Highlands, "encouraging" reluctant landowners to provide land for a network of hydro dams. When the Hydro Board was set up 70 years ago it was a very different beast to SSE, the private member of the "Big Six" which eventually inherited its mantle.

Johnston's Hydro Board had a social remit, an exclusively Highland focus and a far-reaching impact on Scottish energy policy – the predictable nature of base-load hydro-electricity was to provide an essential complement to newer intermittent resources like wind energy.

During the war Johnston deployed fear of a possible nationalist backlash along with the key role of Scots in the defence of England to negotiate higher than average Scottish public spending. Council house-building, for example, continued during the war years in Scotland but nowhere else in the UK. This presumption of higher Scottish public spending eventually crystallised into the Barnett Formula.

Opposed to the concentration of new industry in the English Midlands, Johnston attracted an estimated 700 businesses and 90,000 new jobs to Scotland through his new Scottish Council of Industry.

He regulated rents, set up 32 committees dealing with social and economic problems from juvenile delinquency to sheep farming and set up general hospitals in the expectation of casualties from wartime bombing – a forerunner of the NHS.

Johnston was an arch-persuader and a very practical man. Reluctant to accept Scotland's top job at the age of 60, he drove a very hard bargain with Churchill and the Scottish establishment. Johnston accepted the post of Scottish Secretary on the proviso that all living former secretaries of state for Scotland advise him in a "council of state". 1

The above achievements of Administrative Devolution demonstrate that there is little actual physical need for a Scottish Parliament. That is, a case cannot be made for it on the basis solely of physical necessity.

Those Scots in the Labour Party who may have advocated 'Home Rule' in the past could not seriously have been doing so on the basis of physical necessity, but rather on misconceived (if they thought about at all) notions of themselves, and Scotland, as different, distinct and separate from the rest of the UK. Either that, or it was a terribly misguided attempt to appease their opposition!

If legislative powers are devolved on the basis of presumed 'local', 'regional' or 'national' identity, then this can encourage factionalism. It can lay the ground for potential future regionalist or nationalist platforms, and consequently, the break-up of the wider British state.

Some people say that local differences should be respected. That seems fair enough. But there is a big difference between respecting local, regional or national social and cultural differences, and amplifying those differences. The first can help people to get along, while the second can lead to division.

This is especially so when nationalists are in the ascendant. The separatists will use any powers which they acquire in order to amplify differences, and make it impossible for them to be reconciled; in order to promote their long term goal of division. There is no power available which they cannot exploit for this end.

Following from point 1 – that devolution should not be on the basis solely of identity – we should therefore always involve a 'cross-border' element which seeks to bind everyone in common cause.

For example, it might involve say, 'the western Islands of Scotland and parts of the west coast of Scotland' or 'the southern counties of Scotland and the northern counties of England' ('the Middleland' as it has been called by Rory Stewart MP), or various cities and localities working in partnership throughout the UK.

In the latter regard, the British Government's 'City Deal' programme is on the right lines. This allows the British Treasury to funnel massive amounts of money directly to City Councils. Glasgow and the Clyde Valley, for example, is to receive 1.13bn. (Tom Freeman, 'Mixed Emotions', Holyrood magazine, 6-7-15)

As we said in our speech, One UK: The British Union from 30 First Principles devolution is British State power exercised by a subsidiary body.

Devolution is not the casting-off – the abandonment – of British state power from the centre, and its establishment in a new sovereign body in a new state. In a case where the central power – the British state – abandons its law-making power and its position as the supreme arbiter, and which no longer retains, even in theory, the power to take back those devolved powers, then we do not have devolution. We have the granting of slow independence – a completely different policy.

We need to keep reminding ourselves of the bigger picture. If devolution is not to degenerate into 'slow independence' and parochial forms of factionalism and nationalism which are destructive to the cohesion of the wider society, then the Big Picture of Britain must be kept centre stage.

Devolution of powers to Local Councils should be (and always should have been from the start) directly from the British centre. That is, the Scottish Office (representing the British Parliament in Scotland) should have the control and should devolve powers, administratively not legislatively, directly to the Local Councils. This leaves the British Parliament – representative of all the British people – in ultimate control.

However, any kind of Legislative Devolution of local powers from the British Parliament, to Holyrood, and then from Holyrood to Local Councils, simply empowers Holyrood – which is to say, it simply empowers the SNP for the foreseeable future.

Of course, the nationalists will howl bloody murder at such a recommendation, because it frustrates their total grip on power, but those of us who believe in the Union should be very clear about the democratic reasons for such an arrangement, as well as the constitutional reasons for such a balance (which we explain below).

For example, there is a danger that the 2017 Council elections may see a new raft of SNP-controlled councils. If this happens at the same time as Holyrood (aka the SNP) has been empowered with a whole new set of powers over those Local Councils then we risk living effectively in a One Party State. Nationalist control will be extended right down to the local level.

If the Council is SNP-controlled, and answers directly to SNP-controlled Holyrood then we have absolute SNP domination right down to the grass roots! All those people (the majority) who voted for parties other than the SNP have nowhere to turn.

However, if the SNP-controlled council has to answer to the Scottish Office, and can be over-ruled by the Scottish Office, then at least the electorate is not so vulnerable to SNP domination.

Democracy is better served for everyone! The people who voted SNP can have their Council. And the people who did not vote SNP know that at least the Scottish Office is representing them and looking out for them.

Thus the rest of the electorate is able to rely on another centre of political power to combat the worst excesses of the SNP.

And in the case where the Council is controlled by a different party than is in control at Holyrood – say it is a Labour or Tory or coalition-controlled Council – then if it has a disagreement with the SNP-controlled Holyrood, it will be able to fall back on the Scottish Office for support. It will not be at the mercy of an SNP-controlled Holyrood.

So in both cases, whether the Council is SNP-controlled, or otherwise controlled; there is a more effective constitutional balance of powers if Councils are administratively under the Scottish Office rather than legislatively under Holyrood.

In short, the electorate is better served democratically, and better protected constitutionally, and the possibility of Scotland becoming a One Party State will more likely be avoided.

All of this has the benefit of building up the Scottish Office, and making it relevant again. That can only be a very good thing for all those of us who believe in the UK.

In this regard, the idea that the British Parliament, via the Scottish Office, has 'no mandate' in Scotland because almost all the MPs from Scotland are SNP, is wrong. The fact is that SNP MPs, by virtue of sitting in the British Parliament represent not only their SNP supporters who voted for them, but they also represent everyone else in the constituency who did not vote for them.

That is, the MPs from Scotland represent everyone in Scotland in the British Parliament. That means, the British Parliament represents everyone in Scotland; and it has a mandate to represent everyone in Scotland – a mandate which is given to it by every MP from Scotland who sits in it.

And because the Scottish Office represents the British Parliament in Scotland, it also represents everyone that the British Parliament represents, which is everyone else in Britain too.

Therefore building up the Scottish Office helps to put the British Parliament back at the heart of Scottish political life and local affairs again. It helps to re-establish the centrality of the wider British Context; and to make relevant once more the rest of the UK, and all its people, to Scotland.

Finally, let us use an example from the Scotland Bill to illustrate how this might work.

Immediately after the referendum, the 'Smith Commission' was established and came up with a set of recommendations for further Legislative Devolution. This was translated into the Scotland Bill, which is presently going through Parliament. It is still to be finalised, sometime after the Summer Recess.

We've written extensively about the manner in which the 'Smith Commission' misrepresented itself as a law-making body, when it was merely an advisory body. We've written about the extent to which the public consequently became confused about what is, and is not, the law.

We never expected that national newspapers would be confused about the process as well!

Therefore, we were truly astonished to read in the Daily Telegraph (Scottish edition), 24-6-15, in its front page story "Scotland accused of cutting Queen's funding" that – according to the 3 journalists who wrote the piece (and presumably the sub-editor who checked it all) – "Following Scotland's decision to stay in the UK, control of all the Scottish assets of the Crown Estate was transferred to the Scottish Parliament." 2

This is what the Smith Commission recommended, and it is what the subsequent Scotland Bill is unfortunately legislating for. But, such power was not, and could not, somehow be automatically "transferred to the Scottish Parliament." The Smith Commission did not have the power to do that – although it certainly gave the impression that it did.

Such powers are not yet law.

But so powerful was the impression that the Smith Commission was a law-making body, that here we have a national newspaper as confused as everyone else about what is, and what is not, the law these days.

That aside; politically, the idea of transferring directly any Crown Assets to a separatist-controlled Parliament is very dangerous as far as the future of the Union is concerned. It represents a huge area for mischief making.

Firstly, on principle, as we said in our One UK speech on 18 June 2015, the Crown Estate does not belong to Scotland alone. The Crown Estate, and its revenue, is the rightful property of all the British people and therefore should remain under the control of the central British State which represents all the British people in the United Kingdom. This can and should be done via the Scottish Office.

Secondly, if the proceeds of the Crown Estate rents are devolved to Holyrood, then Holyrood will keep those proceeds for itself. Holyrood (aka the SNP) will choose where and when to distribute the proceeds. Consequently, any 'local' financial benefits risk being lost to the Local Councils.

Thirdly, devolution of the Crown Estate allows republicans in Holyrood and elsewhere to argue that none of the funds raised should be used to help fund the British Monarchy.

However, if this power is Administratively Devolved, then the Scottish Office could create a system whereby the proceeds can be kept out of the hands of Holyrood and can remain in the hands of the Local Councils. This would make far more sense and would be more locally democratic and financially appropriate.

So, if there is any devolving to be done it should be done from the British Parliament, via the Scottish Office, directly to the Local Councils; bypassing Holyrood entirely, and keeping the overall control of the Crown Estate, and its income, in the hands of all the British people of the United Kingdom as represented by the Scottish Office.

We can but hope that the House of Lords brings the dangers of this clause to the attention of the House of Commons, which either drops it entirely, or changes it suitably. Otherwise, the separatists and republicans will be empowered.

We are, of course, aware that some say the Scottish Office, at present, has been so run down and demoralised that it does not have the capacity to even think about (let alone do) any of this. It might not even have an employee with the time to read any of this! But that does not render our recommendation invalid.

Rather, it proves our point that a British Government, which believes in the United Kingdom, and which intends to avoid the complete nationalist domination of Scottish political life, needs to build up the power of the Scottish Office again. Devolving administratively, rather than legislatively, is the way to do it.

1. Lesley Riddoch,"Bold, practical leadership needed", The Scotsman, 4-11-13.

2. Also see, Hamish MacDonell, "Outrage as Scots 'rob' the Queen of £2.1 million with Nicola Sturgeon vowing to keep Scottish rights to Crown Estates including Tobermory Waterfront, off-shore windfarms and fishing rights", Mail on Sunday, 7-12-14, p.1.

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