Well, the Supreme Court has ruled. The Sewel Convention is just that – a convention. It is not a legal rule which is justiciable by the courts.
For those of us who are eagle eyed constitutional law geeks the decision in the Brexit / Article 50 case of R (on the application of Miller and another) (Respondents) v Secretary of State for Exiting the European Union (Appellant) provides some clarity on the meaning of certain sections of the Scotland Act 2016.
The Scotland Act 2016 was, of course, the Act which was the product of the Smith Commission. The Smith Commission arose from the infamous Vow - made in September 2014 by David Cameron, Ed Milliband and Nick Clegg in the dying days of the Scottish independence referendum campaign. The Vow was a promise to give Scotland more powers in the event of a “no” vote and to enshrine the Scottish Parliament as a permanent institution.
The Smith Commission was clear, at paragraph 22, that Scottish Parliamentary consent would be required for the UK Parliament to make law in devolved areas. To do this the Sewel Convention was to be put on a statutory footing.
The Sewel Convention is named after Lord Sewel, the Minister of State at the Scotland Office during the process of the Scotland Act 1998. The convention was established, to the effect, that Westminster would not normally legislate with regard to devolved matters without the consent of the Scottish Parliament.
In basic terms it means that the Scottish Parliament have to agree before Westminster legislate on issues over which the Scottish Parliament have power. This was, however, simply a convention, it was not a requirement.
Although the Smith Commission was clear about the objective - The Sewel Convention will be put on a statutory footing - no detail was given on how the processes of a statutory Sewel Convention would actually work and, perhaps more importantly, how this would sit with our current constitutional make up.
The Scotland Act 2016 therefore simply reflected the words of the convention, as was said in 1998 by Lord Sewel, “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.”
At this point opinion starts to converge down political lines as to whether or not this was implementing the Vow, with those supporting independence arguing it doesn’t and those supporting staying part of the UK arguing that it does.
What is clear however, is that if the purpose of the discussions was to make the Sewel Convention legally enforceable, this was never going to be achieved by the wording of Scotland Act 2016.
The question then is, does the Scotland Act 2016 make any difference to the position of the Sewel Convention? Does it place any obligations on the UK Government when seeking to legislate on matters affecting devolved issues?
According to the Supreme Court – no. The clause in the Scotland Act 2016 places no obligations on the UK Government.
The judgment held that the Sewel Convention was just that, a political convention. The judgement stated:
“The UK Parliament [when passing the Scotland Bill 2016] is not seeking to convert the Sewel Convention into a rule which can be interpreted, let alone enforced, by the courts; rather, it is recognising the convention for what it is, namely a political convention, and is effectively declaring that it is a permanent feature of the relevant devolution settlement. That follows from the nature of the content, and is acknowledged by the words (“it is recognised” and “will not normally”), of the relevant subsection. We would have expected UK Parliament to have used other words if it were seeking to convert a convention into a legal rule justiciable by the courts”.
There we have it: if the Scotland Act 2016 had been explicit it could have been possible (despite being conceptually & constitutionally difficult) for the Sewel Convention to have been legally enforceable. It wasn’t and therefore the sections relating to the Sewel Convention have no legal effect.
In terms of Brexit this means that the UK Government do not legally require to consult the Scottish Parliament.
The effect of this is that Brexit will be imposed on the Scottish people despite 62% of scots voting to remain in the European Union. And despite the fact that Brexit will have a huge impact on the matters currently devolved to the Scottish Parliament, the Scottish Parliament do not require to agree to these changes before they are made.
For those who argue that Westminster is sovereign this will cause no difficulty. For those who argue that Scotland should be independent and take our own decisions this is huge fuel to their fire.
However, probably the most frustrating thing about this judgment is that it points to the possibility of their being another way, a route down the middle which would have allowed the Scottish Parliament and the UK Parliament to have worked together on the big issues of the day. This opportunity was missed. That missed opportunity now has huge consequences.