Constitutional implications of the Government's draft Scotland clauses - Political and Constitutional Reform Contents


2  Entrenching the Sewel Convention (clause 2)

Policy

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".[56] Although no wording to this effect was inserted into the 1998 Act, Lord Sewel's words have been treated as a solemn and binding undertaking.

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.[57]

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").[58]

48. We heard in evidence that the Convention has been scrupulously adhered to since 1999, with only one (inadvertent) breach.[59] 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",[60] although without specifying how this was to be achieved. Clause 2 is intended to give effect to this part of the Agreement.[61]

Implementation

Drafting issues

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[62] and in written evidence from Dr Adam Tucker and Dr Adam Perry[63] 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 devolved institutions.

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 Ministers".[64] 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."[65] 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.[66]

54. The Department insists that clause 2 does put the Sewel Convention "on a statutory footing", in line with the Smith Commission Agreement.[67] However, clause 2 clearly does not give the Convention the force of statute.[68] Like clause 1, it is not framed as "a normative statement capable of being given legal effect",[69] but rather as a "recognition" of an established fact: in this case, "the existence of the convention as a convention".[70] 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")[71] 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 justiciable.[72]

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 2.[73]

PLACING THE CONVENTION ON A "STATUTORY FOOTING"

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.[74]

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 force—or, as Professor Ian Loveland of City Law School put it, "like a bowl of jelly".[75]

NON-LEGAL SIGNIFICANCE

59. The clause can still be seen as strengthening the Convention in political (and perhaps, indirectly, in legal terms) as a convention.[76] However, even this was disputed in evidence that we received.[77]

Alternative approaches

GIVING THE CONVENTION STATUTORY FORCE

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.[78] 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.[79]

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.[80]

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.[81] The government would then have to try and explicitly repeal the Act to achieve its purposes and take the political consequences.

DEFINING "NORMALLY"

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 'not normally'".[82] 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.[83] Retention of the word "normally" sits ill with the Government's stated intention to "formalise" the Convention.[84]

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 issue—although it would still be for the courts to interpret and apply any such provision.[85]

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.[86] 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)",[87] or in order to abide by the UK's international obligations.[88]

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.[89]

Our view

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.

  1. 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

57   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

58   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

59   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

60   Report of the Smith Commission for the future devolution of powers to the Scottish Parliament, November 2014, para 22 Back

61   Cm 8990, para 1.2.2 Back

62   Q13 Back

63   Dr Adam Tucker and Dr Adam Perry (DSB 07) paras 5-9; cf. Law Society of Scotland (DSB 12) Back

64   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]; www.scottish.parliament.uk/parliamentarybusiness/Bills/19017.aspx; and www.scotland.gov.uk/About/Government/Sewel/KeyFacts. Back

65   Cm 8990, para 1.2.2 Back

66   Oral evidence taken on 3 March 2015, HC (2014-15) 700-ix, Q534 Back

67   Scotland Office (DSB 05) Back

68   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

69   Prof Tom Mullen (DSB 11) Back

70   Q12; cf. Dr Mark Elliott (DSB 01) para 26 Back

71   Q13 [Prof A McHarg] Back

72   Q13 [Mr M Clancy]; cf. Law Society of Scotland (DSB 12). The precedent cited is Madzimbamuto v Lardner-Burke PC [1969] 1 AC 723. Back

73   Oral evidence taken on 3 March 2015, HC (2014-15) 700-ix, Q533 Back

74   Loc. cit. Back

75   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

76   Dr Mark Elliott (DSB 01) paras 27-8 Back

77   Prof Tom Mullen (DSB 11) Back

78   Dr Michael Gordon (DSB 03) para 17 Back

79   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

80   Q13 Back

81   Q17. The legal precedent here is BH v Lord Advocate [2012] UKSC 24; 2012 SC(UKSC) 308, per Lord Hope at para 30. Back

82   Scotland Office (DSB 05) Back

83   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

84   Oral evidence taken on 3 March 2015, HC (2014-15) 700-ix, Q533 Back

85   Mark Ryan (DSB 02), para 5; cf. Q14 Back

86   Dr Michael Gordon (DSB 03) para 18 Back

87   Royal Society of Edinburgh / British Academy (DSB 09) para 29 Back

88   Q66 [Prof M Keating] Back

89   Dr Michael Gordon (DSB 03) para 18; Dr Adam Tucker and Dr Adam Perry (DSB 07), paras 16-7 Back


 
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