Scotland and the World

Wouldn't more devolution do?

Q: Wouldn't more devolution do?

Devo max is a serious idea held by serious people. The difficulty is the record: more devolution is promised whenever independence threatens, delivered thin once the threat recedes - and whatever arrives stays on loan, revocable by a parliament Scotland doesn't control.

The short answer

Of all the alternatives to independence, more devolution is the one that deserves the most respect. Millions of Scots hold this position thoughtfully: keep the union, but move most decisions to Edinburgh. If that could be had, reliably and permanently, much of this site would be redundant.

So this page takes the idea seriously - and then asks the question any serious idea has to survive: what happened the last several times it was tried? The record is consistent. More devolution is promised generously whenever independence looks likely, delivered thinly once the danger passes, and every power delivered remains on loan - revocable, overridable and vetoable by a parliament Scotland doesn't control and rarely votes for. That's not a flaw activists made up. It's written into the UK's constitution, and the UK Supreme Court has confirmed it.

The case this page takes seriously

Be in no doubt that devolution has delivered real things. The Scottish Parliament itself. Free prescriptions, different tuition policy, minimum unit pricing, a separately run NHS - two decades of Scottish domestic policy made in Edinburgh, as our NHS page sets out. And through the referendum years, "more powers short of independence" was consistently among the most popular constitutional options in Scotland - ScotCen's research found devo max the preferred outcome of a large share of Scots, under John Curtice's analysis often the plurality choice.

If you hold this view, you're in good company, and nothing below argues that devolution has been worthless. The argument is narrower and, we think, harder to answer: the question is not whether devolved powers are good. It's whether they can ever be secure.

What was promised, and what arrived

Two days before the 2014 vote, with polls narrowing, the front page of the Daily Record carried "The Vow" - a signed pledge from David Cameron, Ed Miliband and Nick Clegg promising "extensive new powers" for Holyrood (ITV News, 16 September 2014). Gordon Brown went further, telling an Edinburgh audience: "We're going to be, within a year or two, as close to a federal state as you can be in a country where one nation is 85 per cent of the population" (The Scotsman).

What arrived was the Smith Commission, and then the Scotland Act 2016: control of income tax rates and bands, some welfare benefits, and assignment of half of VAT receipts (Scotland Act 2016 explanatory notes). Real powers - and nobody's definition of "as close to a federal state as you can be". The VAT assignment, for what it's worth, has been postponed indefinitely by agreement of both governments and has never been implemented (House of Commons Library, SN7077).

And here is the detail worth holding onto: devo max has never once been on a ballot paper. In 2012 the Scottish Government wanted a second referendum question on exactly that. The UK government's price for agreeing the referendum at all, in the 2012 Edinburgh Agreement, was a single question - independence yes or no, with the most popular option of the day deliberately excluded (New Statesman on the Edinburgh Agreement negotiations). "More powers instead" has been the carrot in two referendum campaigns and an option in none.

Powers lent, not owned

The deeper problem isn't the pace of delivery. It's the terms.

Devolution runs on the Sewel convention: Westminster "will not normally legislate with regard to devolved matters" without Holyrood's consent. The word doing the work there is normally - and in 2017 the UK Supreme Court ruled, in the Miller case, that the convention is political only: "policing the scope and manner of its operation does not lie within the constitutional remit of the judiciary" (Miller, 2017; Institute for Government explainer). Holyrood's consent, in other words, is a courtesy the courts cannot make Westminster extend.

For devolution's first two decades the courtesy held. Then it was tested. Between 2018 and 2023, six Acts of the UK Parliament were passed covering devolved matters after consent was explicitly refused - five of them Brexit legislation, including the EU Withdrawal Act 2018 (the first override in devolution's history), the Withdrawal Agreement Act 2020 (refused by all three devolved legislatures, passed anyway) and the Internal Market Act 2020, which constrains how devolved regulations can apply to goods and services from the rest of the UK (Institute for Government). In total, consent has been withheld by at least one devolved legislature for 29 Acts - 19 of them in the 2019-24 parliament alone.

There is also a straight veto. In January 2023 a UK Secretary of State used Section 35 of the Scotland Act for the first time, blocking royal assent for the Gender Recognition Reform Bill - the first bill passed by the Scottish Parliament ever to be stopped this way (House of Commons Library, CBP-9705). His stated reason: the bill would adversely affect the operation of reserved law, in particular the UK-wide Equality Act and Gender Recognition Act. The Scottish Government challenged the order in court, and lost - the Court of Session found the veto lawful, and there was no appeal (Court of Session, December 2023; Institute for Government). The bill itself was fiercely contested, and this page won't re-fight it here; the constitutional point doesn't depend on it.

It does depend on one distinction, because the episode is often misread. When Holyrood passes a bill it has no power to pass, the courts strike it down. That has happened, and it isn't a veto - it's the rulebook working. Section 35 is something else. It applies to bills Holyrood is fully entitled to pass, and it turns on a UK minister's judgment that reserved law would be adversely affected. The court confirmed the minister made that judgment lawfully. It did not say the bill was beyond Holyrood's powers.

So here is what now exists, whichever side of the underlying argument you were on: a used, court-approved ministerial veto over lawful Acts of the Scottish Parliament. And there is no rule saying it will only ever fall on bills you opposed.

Enoch Powell - no friend of devolution, which is rather the point - put the principle in four words during the 1970s devolution debates: "power devolved is power retained." He meant it as a warning to unionists. It reads today as a plain description.

No umpire, only a veto

Here's a test that separates real federations from the UK: when the two levels of government disagree, who decides?

In Germany, Canada, Australia or the United States, the answer is an umpire neither side controls - a constitutional court applying a written division of powers that the centre cannot rewrite alone. In the UK, the answer is Westminster. To be fair to the current arrangements: a 2022 review of intergovernmental relations did build new machinery - councils, an independent secretariat, even dispute hearings chaired by someone who isn't a party to the row (Institute for Government). A genuine improvement, and it should be said so.

But look at what the machinery can reach. It can facilitate, recommend and mediate. It cannot bind the UK Parliament, because nothing can: parliamentary sovereignty is the UK's one non-negotiable constitutional rule. Sewel overrides, Section 35, the Internal Market Act - all of it sits beyond the reach of any dispute process, because the "dispute" ends the moment Westminster legislates. A federation referees disagreements between its levels of government. The UK lets one level decide, and calls the other's objection a consultation response.

Your federal partner would be England's government

Which leads to the last, and least discussed, problem with the federal dream - the one hiding in Gordon Brown's own sentence. One nation is 85% of the population.

A federation needs a federal tier that stands apart from its member states, including the biggest one. The UK cannot supply this, because Westminster is England's parliament. England - unlike Scotland, Wales and Northern Ireland - has no legislature of its own, so the UK level and the English level are the same chamber, the same ministers, the same majority. The one modest attempt to separate them, "English votes for English laws", was quietly abolished in 2021 after six years (House of Commons Library). No major party proposes an English parliament; there is no detectable English demand for one.

So "federalism" in the UK doesn't mean Scotland and England as partners under a neutral roof. It means Scotland negotiating with a federal government that is simultaneously its counterpart's government - judge, party and roof at once. That isn't a federation waiting to be built. It's the current arrangement wearing a grander name. Brown's proposals have been floated, in various forms, in 2014, 2016, 2021 and since; none has reached a manifesto commitment with a delivery date, let alone a statute.

So what's the real question?

Not whether devolution was worth having - it plainly was, and the powers Holyrood holds have been used to build things Scots value.

The question is who decides what powers Scotland has. Under devolution - any devolution, however maximal - the answer is Westminster, permanently. It decided what Smith would deliver, kept devo max off the only ballot that mattered, overrode consent when Brexit made consent inconvenient, and vetoed a bill when it chose to. Each of those decisions may have its defenders. All of them were made for Scotland, not by it. More devolution asks Westminster to hand over more powers and promise never to take them back - and as the Supreme Court has confirmed, that is a promise Westminster cannot legally bind itself to keep. Independence is the only settlement in which Scotland's powers are not on loan.

Take it with you

Facts for sharing - each button copies the line, with its source and a link back to this page.

The 2014 Vow promised 'extensive new powers'. What arrived was income tax rates, some benefits and half of VAT receipts - and polling at the time showed most Scots wanted more than the Smith Commission offered (Daily Record; ScotCen)
Devo max has never been on a ballot paper. The one time it could have been, in 2012, the UK government insisted on a single question as its price for agreeing the referendum (Edinburgh Agreement)
Since 2018 Westminster has passed six Acts covering devolved matters after consent was explicitly refused - five of them Brexit laws. The Supreme Court has ruled the consent convention is one the courts cannot enforce (Institute for Government; Miller 2017)
Gordon Brown promised Scots would be 'as close to a federal state as you can be in a country where one nation is 85% of the population'. That 85% is the reason federalism never arrives: Westminster already is England's parliament (The Scotsman)