Written evidence submitted by Dr Adam Tucker and Dr Adam Perry (DSB 07)

Introduction and Summary

1. Adam Tucker is a Lecturer in Law at the University of York. Adam Perry is a Lecturer in Law at Queen Mary University of London. We both teach and research in the fields of constitutional law and constitutional theory. The proposals in this submission derive from our current and previously published research on parliamentary sovereignty, the Scotland Act, and constitutional conventions.

2. This submission focusses on Clause 2. This clause has no legal effect. It does not even purport to make any legal change.  Rather, it recognises, or is intended to recognise, the existing constitutional fact that the UK Parliament will normally only legislate on devolved matters with the consent of the Scottish Parliament. Clause 2 claims to thereby recognise the ‘Sewel Convention’.

3. In summary, this submission:

• examines two ways in which Clause 2 fails to deliver the policy intentions of the Smith Commission and UK Government: it concerns a narrower class of legislation than the Sewel Convention (paragraphs 5-9) and it does not change the “footing” or basis of the Sewel Convention (paragraphs 10-17);
• proposes an amendment to Clause 2 to bring its content into line with the content of the Sewel Convention (paragraph 9); and
• proposes a supplementary clause to provide a genuine statutory footing for the objectives underlying the Sewel Convention (paragraph 16)

Policy

4. Both the Smith Commission and the UK Government state that their aim is to “put the Sewel Convention on a statutory footing”. Clause 2 fails to achieve this aim, for two reasons. First, Clause 2 concerns a narrower class of legislation than the Sewel Convention. Second, Clause 2 does not change the “footing” or basis of the Sewel Convention.

Content

5. What is now known as the Sewel Convention originated in a speech made by Lord Sewel in 1998, in which he said:

We [the Government] envisage that there could be instances where it would be more convenient for legislation on devolved matters to be passed by the United Kingdom Parliament.   However … 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. (HOL Hansard 21 Jul 1998 : Column 791)

6. The Sewel Convention was the subject of a Memorandum of Understanding between the UK Government and the devolved administrations. Over the years, there have been various ‘Devolution Guidance Notes’, of which Devolution Guidance Note 10 (DGN10), concerning post-devolution primary legislation affecting Scotland, is of particular importance. DGN10 provides guidance to UK departments as to when a Bill will require the consent of the Scottish Parliament. Any Bill that

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

is ‘subject to the convention requiring the consent of the Scottish Parliament’. Thus, according to DGN10, the Sewel Convention applies not only to legislation on devolved matters, but also to legislation altering the competences of the Scottish Parliament or Scottish Ministers. This understanding of the Sewel Convention is shared by the Procedures Committee of the Scottish Parliament (7th Report, 2005 (Session 2) ‘The Sewel Convention’).

7. That DGN10 (rather than Lord Sewel’s speech) accurately reflects the content of the current Sewel Convention can also be seen from the fact that there have been consent motions for changes by the UK Parliament to the competences of the Scottish Parliament or the Scottish Ministers. For example, there was a legislative consent motion prior to the enactment of the Scotland Act 2012.

8. Clause 2, by contrast, states:

2. The Sewel Convention

…

(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.

This clause purports to place the Sewel Convention on a statutory footing, but it only addresses the part of the convention about legislation on devolved matters. It does not address that part of the Sewel Convention that concerns legislation altering the competences of the Scottish Parliament and the Scottish Ministers.

9. This is a serious discrepancy. It has the consequence that Clause 2 fails to give effect to the proposals of the Smith Commission and the UK Government. To better give effect to those proposals, the relevant part of Clause 2 could be amended to read:

2. The Sewel Convention

…

(8) But it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters, or to alter the legislative competence of the Scottish Parliament or the executive competence of the Scottish Ministers, without the consent of the Scottish Parliament.

Statutory Footing

10. Providing a statutory footing for the Sewel Convention would mean changing its basis. That is not what Clause 2 (either the original or the alternate version in the last paragraph) does. Rather, Clause 2 simply recognises that the UK Parliament will act in accordance with the Sewel Convention. As a result, Clause 2 does not give effect to the proposals of the Smith Commission and the UK Government.

11. To place the Sewel Convention on a statutory footing, Clause 2 must be supplemented by a further clause which creates, rather than merely recognises, political barriers to legislating on devolved matters and with respect to the competences of the Scottish Parliament and Ministers without consent. How ought Clause 2 to do this?

12. We think it is helpful to start from the reasons why a statutory footing for the convention might be desirable. There are three that seem especially important:

• Illegitimacy. The Sewel Convention lacks legitimacy because of how it was created. A typical constitutional convention emerges from a practice among constitutional actors, and it is legitimate because it is accepted by the participants in that practice. The Sewel Convention did not emerge gradually; it was declared. Moreover, it originated in a statement attributed to and refined by the UK Government, even though it purported to bind the UK Parliament. This is highly unusual. It amounted to the executive’s imposition of a constitutional constraint on the legislature.
• Unintelligibility. The Sewel Convention’s unusual origins and refinement in memorandums and other documents contribute to its lack of intelligibility. As the Smith Commission notes, “improved understanding is…critical to sustaining the trust and engagement of the public”. 
• Weakness. The Sewel Convention (like all constitutional conventions) is not legally enforceable, nor does its breach directly lead to any legal consequences. Legislation enacted in defiance of the convention would be valid legislation, and no legal sanctions would attach to those who promoted and passed that legislation. It cannot be said that Parliament or that the UK Government has acted ‘unlawfully’ by passing relevant legislation without the consent of the Scottish Parliament. 

13. Some ways of placing the Sewel Convention on a statutory footing fail to respond to one of these concerns. For example, giving the executive the power and perhaps the obligation to maintain procedures similar to those set out in DGN10 would respond to the concerns about illegitimacy and weakness, but fail to set out a clear statutory rule.

14. Other ways of placing the Sewel Convention on a statutory footing respond to all three concerns, but create other problems. One idea is to simply legislate the terms of the convention. A revised Clause 2 might read: 

2. The Sewel Convention

…

(8) But the Parliament of the United Kingdom may not normally legislate with regard to devolved matters, or to alter the legislative competence of the Scottish Parliament or the executive competence of the Scottish Ministers, without the consent of the Scottish Parliament.

15. There are at least four objections to a revised Clause 2 in this form. First, the inclusion of the word “normally” would make it very difficult for courts to enforce. Second, it is arguably at odds with parliamentary sovereignty, for the reasons canvassed by Mark Elliott in his written submissions to this inquiry. Third, it is considered a significant advantage of the current convention that action contrary to the convention is a political rather than a legal issue. As Lord Sewel noted (immediately after anticipating the convention’s development) in debate on the Scotland Act: 

If problems do arise the solution is for the Scottish executive and the United Kingdom Government to resolve the matter through political dialogue (HOL Hansard 21 Jul 1998 : Column 791)

Finally, there is nothing in the Smith Commission or UK Government’s proposals to suggest that reform of this nature is intended. The Sewel Convention is to be placed on a statutory footing, but its fundamental nature is to be kept intact. Similar objections apply to measures that would codify the procedures from DGN10.

16. The approach we favour is to create a new element of Parliamentary procedure modelled on section 19 of the Human Rights Act 1998, obliging ministers to make a statement either that proposed legislation did not require the consent of the Scottish Parliament, that it did require consent and that consent had been obtained, or that it did require consent but the government wishes the House to proceed without consent. For example, the relevant clause might read:

A Minister of the Crown in charge of a Bill in either House of Parliament must, before Second Reading of the Bill—

(a) make a statement to the effect that in his view the provisions of the Bill do not require the consent of the Scottish Parliament;

(b) make a statement to the effect that in his view the provisions of the Bill do require the consent of the Scottish Parliament and that such consent has been obtained; or

(c) make a statement to the effect that in his view the provisions of the Bill do require the consent of the Scottish Parliament, that such consent has not been obtained, but that the government nevertheless wishes the House to proceed with the Bill.

17. Consent would be “required” in the circumstances envisaged by the Sewel Convention, that is, in “normal” (unexceptional) circumstances. In effect, then, this clause says that the UK Government is to indicate to the UK Parliament whether the convention applies, and if it applies, whether it has been complied with. In conjunction with a revised Clause 2, this proposal responds to all of the concerns above. It achieves the policy aims of the Smith Commission and the UK Government in an intelligible and legitimate fashion, while adding an important legal dimension to the convention. Moreover, it achieves these aims without any loss of flexibility, and without threatening parliamentary sovereignty.

February 2015