2 Entrenching the Sewel Convention
45. During the passage of the Scotland Act 1998,
Lord Sewel, the then Parliamentary Under-Secretary of State for
Scotland, stated that, in the event of Scottish devolution being
enacted: "we would expect a convention to be established
that Westminster would not normally legislate with regard to devolved
matters in Scotland without the consent of the Scottish parliament".
Although no wording to this effect was inserted into the 1998
Act, Lord Sewel's words have been treated as a solemn and binding
46. The resulting "Sewel Convention" is
set out (in words almost identical to those used by Lord Sewel)
in the Memorandum of Understanding between the UK Government and
the devolved administrations:
[T]he UK Government will proceed in accordance
with the convention that the UK Parliament would not normally
legislate with regard to devolved matters except with the agreement
of the devolved legislature.
47. When considering whether the Convention applies
in respect of any given piece of proposed legislation, Government
departments take advice from the Scotland Office which will, in
turn, enter into discussions with the Scottish Government (the
latter effectively mediates between the UK Parliament and the
Scottish Parliament in the operation of the Sewel Convention).
Where the UK Government and the Scottish Government agree on the
inclusion of provisions affecting devolved matters in a Westminster
Bill, the Scottish Government will invite the Scottish Parliament
to give its consent. This consent takes the form of a Legislative
Consent Motion (informally known as a "Sewel Motion").
48. We heard in evidence that the Convention has
been scrupulously adhered to since 1999, with only one (inadvertent)
breach. Hardly anyone
can envisage a likely situation in which it would be deliberately
breached; and its entrenchment had not been an issue until it
was raised during the referendum campaign. Its permanence is now
unavoidably an issue, in tandem with that of the permanence of
the devolved institutions.
49. The Smith Commission Agreement gave the undertaking
that "The Sewel Convention will be put on a statutory footing",
although without specifying how this was to be achieved. Clause
2 is intended to give effect to this part of the Agreement.
50. The text which is proposed to be inserted at
the end of section 28 of the 1998 Act by virtue of draft clause
2 reads as follows;
"(8) But it is recognised that the Parliament
of the United Kingdom will not normally legislate with regard
to devolved matters without the consent of the Scottish Parliament."
51. We heard in oral evidence from Professor McHarg
and in written evidence from Dr Adam Tucker and Dr Adam Perry
that the draft clause failed to acknowledge the full scope of
the Sewel Convention as it is currently applied in practice. The
clause refers only to the Convention's applicability in respect
of devolved matters: it was pointed out to us that the Convention
is also applied to legislation affecting the competences of the
52. This is reflected in the UK Government's Devolution
Guidance Note 10, which states that a Bill requiring Scottish
parliamentary consent under the Sewel Convention is one which
"contains provisions applying to Scotland and which are for
devolved purposes, or which alter the legislative competence
of the Parliament or the executive competence of the Scottish
DGN10 is referred to in the Command Paper as follows: "It
is expected that the practice developed under Devolution Guidance
Note 10 (DGN10) will continue. DGN10 has no legal effect but sets
out how the UK Government departments legislating in Scotland
will meet the terms of the Convention."
This practice is not reflected in the drafting of clause 2.
53. When we asked the Minister about this, he confirmed
that the Sewel Convention did indeed apply to any Bill that purported
to change the competences of the Scottish institutions: it had
applied to the passage of the Scotland Act 2012 and would similarly
apply in respect of the proposed new Bill.
54. The Department insists that clause 2 does put
the Sewel Convention "on a statutory footing", in line
with the Smith Commission Agreement.
However, clause 2 clearly does not give the Convention the force
of statute. Like
clause 1, it is not framed as "a normative statement capable
of being given legal effect",
but rather as a "recognition" of an established fact:
in this case, "the existence of the convention as a convention".
It does not amend section 28(7) of the 1998 Act (which states
that "this Section does not affect the power of the Parliament
of the United Kingdom to make laws for Scotland")
but rather supplements it by effectively adding the Convention
as section 28(8). As we heard from Michael Clancy, of the Law
Society of Scotland, there are clear legal precedents for the
lawful breach of a convention. While it might be considered "unconstitutional"
for Parliament to disregard a convention, to do so would not be
55. Mr Mundell told us only that "the intention
now is to formalise" the Convention, though he did not explain
to us what exactly this meant or how it is achieved by clause
PLACING THE CONVENTION ON A "STATUTORY
56. Even if the Convention were to be framed as statute
law, this would, under orthodox constitutional theory, still not
represent the entrenchment of the devolved institutions' competences,
since these could at any time be unilaterally changed or abolished
by the UK Parliament if it so chose.
57. The Minister himself told us:
I am sure constitutional experts would argue
that this Parliament would always be able to legislate on matters
that had been devolved, but I think that by setting those proposals
out in that clause, it makes it again absolutely clear that the
intention would not be to do so and that to take the step of seeking
to do so without the agreement of the Scottish Government would
be a very significant step, which again would place questions
over the future of the United Kingdom.
The salient point here appears to be that the force
of the Convention is actually a matter of political reality, regardless
of its legal status.
58. For the above reasons, clause 2 also appears
(like clause 1) to be "legally vacuous", i.e.
merely declarative and without statutory forceor, as Professor
Ian Loveland of City Law School put it, "like a bowl of jelly".
59. The clause can still be seen as strengthening
the Convention in political (and perhaps, indirectly, in legal
terms) as a convention.
However, even this was disputed in evidence that we received.
GIVING THE CONVENTION STATUTORY
60. We were told that if the Sewel Convention were
to be given the force of statute law, it could be seen as a "manner
and form" constraint imposed by a Parliament on its successors
(as discussed in Chapter 1 above), such that the courts might
act to enforce it as a limit on the scope of Parliament's legislative
power. A possible
model cited in this regard is section 4 of the Statute of Westminster
1931, under which the UK Parliament could only legislate for a
Dominion at the request and with the consent of that Dominion.
61. Professor Loveland suggested to us that one way
of placing the Sewel Convention on a statutory footing would be
by means of
an explicit prohibition on the power of the House
of Lords at Third Reading to assent to any Bill on a devolved
matter until such time as the consent of the Scottish Parliament
to that Bill had been expressed in a form specified by the Act.
62. If the Scotland Act 1998 were amended to give
the Sewel Convention the force of a statute, a future UK government
might still seek to legislate on a matter covered by the Convention
without the consent of the Scottish Parliament. However, Professor
McHarg argued that in such a case the UK government would fall
foul of the courts' established view that the 1998 Act, as amended,
would, as a significant constitutional statute, not be liable
to implied repeal.
The government would then have to try and explicitly repeal the
Act to achieve its purposes and take the political consequences.
63. A likely problem with any attempt to entrench
the Sewel Convention in statutory form (by whatever means) is
the fact that the Convention relates to what happens "normally".
The Scotland Office insists that, because the Convention has always
been adhered to, "there has been no need to unpack the words
However, it is hard to see how any clear statutory prescription
(as distinct from a parliamentary convention) could be made to
rest on such an imprecise term.
Retention of the word "normally" sits ill with the Government's
stated intention to "formalise" the Convention.
64. This would be a particular problem if the Convention
were to become by this means justiciable and therefore open to
interpretation by the courts. This could be avoided by adding
what is known as an ouster clause, the purpose of which is to
seek to oust a matter from the jurisdiction of the courts. Such
a clause in this case could assert parliamentary privilege and
forbid the courts from determining this issuealthough it
would still be for the courts to interpret and apply any such
65. One way to address this would be to elaborate
the circumstances in which the UK Parliament would be allowed
to legislate on a devolved matter without the consent of the Scottish
Parliament. Dr Gordon suggested that a possible model is provided
in the European Union Act 2011, which provides specific conditions
for exemption from the "referendum locks" under which
referendums must be held on UK assent to changes to EU treaties.
The Royal Society of Edinburgh suggested to us that "abnormal"
circumstances might be defined as "for example, a state of
war or national emergency (economic, environmental or disease)",
or in order to abide by the UK's international obligations.
66. Alternatively, the Convention as it stands might
be given the force of statute but with an added requirement for
the UK Government to state why it sought to legislate on a matter
covered by the Convention without the consent of the Scottish
Parliament. A Minister could, for example, be required to make
a statement to the UK Parliament regarding the consent of the
Scottish Parliament to a Bill (along the lines of section 19 of
the Human Rights Act 1998). Any government wishing to proceed
with legislation without the consent of the Scottish Parliament
would still be able to do so, but at a political cost.
67. Draft clause 2 fails to acknowledge that the
Sewel Convention in practice extends to legislation affecting
the competences of the devolved institutions. This significant
deficiency must be addressed in any redrafted version.
68. Despite what the Scotland Office claims, clause
2 does not put the Sewel Convention "on a statutory footing"
(in the sense of giving it the force of a statute), in line with
the Smith Commission Agreement. In its proposed form it can only
be said to strengthen the Convention in political terms.
69. If the Convention were to be given the force
of statute, this would still, according to orthodox constitutional
theory, not represent any entrenchment of the competence of the
Scottish Parliament. There is a case that if the Convention were
to be given the force of statute, it would constitute a "manner
and form" constraint on the power of future Parliaments to
legislate in respect of the matters covered by the Convention.
- The presence of the word "normally"
in the Convention is clearly problematic when it comes to giving
it the force of a statute, and we recommend that this be addressed
in any redraft of the clause. One
way to do so would be by elaborating in detail the circumstances
in which the UK Parliament would be allowed to legislate on a
matter covered by the Convention without the consent of the Scottish
Parliament. Alternatively, the Convention might be given the force
of statute as it stands but with the addition of a requirement
for the government to set out its reasons for legislating on a
matter covered by the Sewel Convention without the consent of
the Scottish Parliament where it seeks to do so.
56 HL Deb, 21 July 1998, col 791 Back
Memorandum of Understanding and Supplementary Agreements Between the United Kingdom Government, Scottish Ministers, the Welsh Ministers, and the Northern Ireland Executive Committee,
October 2013, para 14 Back
Loc. cit.; Cabinet Office, Devolution Guidance Note 10: Post-Devolution Primary Legislation affecting Scotland,
23 August 2011; Standing Orders of the Scottish Parliament, 4th
Edition, 8th Revision, June 2014, Chapter 9B Back
Q15; cf. Scottish Affairs Committee, Fourth Report of Session
2005-06, The Sewel Convention: The Westminster Perspective, HC
983, Q23; Scottish Parliament Procedures Committee, 7th Report,
2005 (Session 2), The Sewel Convention, SP Paper 428, Vol. 1:
Report, para 145 Back
Report of the Smith Commission for the future devolution of powers to the Scottish Parliament,
November 2014, para 22 Back
Cm 8990, para 1.2.2 Back
Dr Adam Tucker and Dr Adam Perry (DSB 07) paras 5-9; cf.
Law Society of Scotland (DSB 12) Back
Cabinet Office, Devolution Guidance Note 10: Post-Devolution Primary Legislation affecting Scotland,
23 August 2011, para 4 (emphasis added). This interpretation of
the Convention is also reflected in: Scottish Parliament Procedures
Committee, 7th Report, 2005 (Session 2), The Sewel Convention,
SP Paper 428, Vol. 1: Report, para 91 (Lord Sewel himself is here
quoted noting that the scope of the Convention had been extended
since he first enunciated it); Scottish Affairs Committee, Fourth
Report of Session 2005-06, The Sewel Convention: The Westminster Perspective,
HC 983, Ev 24-5 [Memorandum submitted by the Scotland Office];
and www.scotland.gov.uk/About/Government/Sewel/KeyFacts. Back
Cm 8990, para 1.2.2 Back
Oral evidence taken on 3 March 2015, HC (2014-15) 700-ix, Q534 Back
Scotland Office (DSB 05) Back
Dr Mark Elliott (DSB 01) para 24, Dr Adam Tucker and Dr Adam Perry
(DSB 07) paras 10-1, We were told by Dr Gordon that clause 2 places
the Convention on a statutory footing only "in a rather formal
sense. The idea of placing a constitutional convention on a 'statutory
footing' is quite ambiguous, and while the proposed amendment
of section 28 of the Scotland Act 1998 does achieve this objective,
it could also have been interpreted to require something more
far-reaching"-Dr Michael Gordon (DSB 03) para 16. Back
Prof Tom Mullen (DSB 11) Back
Q12; cf. Dr Mark Elliott (DSB 01) para 26 Back
Q13 [Prof A McHarg] Back
Q13 [Mr M Clancy]; cf. Law Society of Scotland (DSB 12).
The precedent cited is Madzimbamuto v Lardner-Burke PC
 1 AC 723. Back
Oral evidence taken on 3 March 2015, HC (2014-15) 700-ix, Q533 Back
Loc. cit. Back
Q13. It is noteworthy that section 28(7) as it stands is, from
the standpoint of orthodox constitutional theory, also "legally
vacuous", i.e. merely declarative, since it purports
to make inalienable something which is in fact inherently inalienable. Back
Dr Mark Elliott (DSB 01) paras 27-8 Back
Prof Tom Mullen (DSB 11) Back
Dr Michael Gordon (DSB 03) para 17 Back
Dr Mark Elliott (DSB 01) para 25. In the cases of Australia and
Canada this provision was subsequently repealed by means of UK
legislation, passed at the request and with the consent of those
Dominions, namely the Canada Act 1982 and the Australia Act 1986. Back
Q17. The legal precedent here is BH v Lord Advocate  UKSC 24;
2012 SC(UKSC) 308, per Lord Hope at para 30. Back
Scotland Office (DSB 05) Back
Qq13 [Prof I Loveland], 65-6; cf. Mark Ryan (DSB 02) para
5, Dr Michael Gordon (DSB 03) para 16, Dr Adam Tucker and Dr Adam
Perry (DSB 07) para 15, Royal Society of Edinburgh / British Academy
(DSB 09) para 26, Prof Tom Mullen (DSB 11). It might be argued
that the presence in the Convention of the word "normally"
actually makes it quite meaningless even as a mere Convention,
since effectively anything could be described as "abnormal"
where what constitutes abnormality is not further defined. Back
Oral evidence taken on 3 March 2015, HC (2014-15) 700-ix, Q533 Back
Mark Ryan (DSB 02), para 5; cf. Q14 Back
Dr Michael Gordon (DSB 03) para 18 Back
Royal Society of Edinburgh / British Academy (DSB 09) para 29 Back
Q66 [Prof M Keating] Back
Dr Michael Gordon (DSB 03) para 18; Dr Adam Tucker and Dr Adam
Perry (DSB 07), paras 16-7 Back