Defying convention: Supreme Court puts Sewel on the sidelines
26 January 2017
In the new age of alternative facts, even Sean Spicer might struggle to spin Tuesday’s Supreme Court judgment as anything other than a comprehensive defeat for the government.
Yet, as my colleague Dominic Ruck Keene’s post alluded to, the ultimate political ramifications of Miller would have made the Article 50 process appreciably more turgid had the Justices accepted the various arguments relating to devolution.
The References from the courts in Northern Ireland, and the interventions of Scotland’s Lord Advocate and the Welsh Counsel General asked, in different ways, whether the terms on which powers were devolved to Stormont, Holyrood and Cardiff required consultation with or the agreement of those legislatures before the Article 50 notice was served.
The answer demonstrated the importance of the distinction between political questions and legal questions that the Court was at pains to draw in crystal clear terms, both during the hearing and in its judgment.
I focus on the point that featured in all three devolution cases – the status of the Sewel Convention.
The genesis of the Convention
The Convention is named after Lord Sewel who, in July 1998 and while a Minister of State in the Scotland Office, said:
“… 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.”
The requirement for such an arrangement arose from the fact that the Northern Ireland Act, Scotland Act and Government of Wales Act all provided that the power of the devolved legislature to make laws did not affect the power of the UK Parliament to make laws for each country.
The Convention was embodied in a Memorandum of Understanding in December 2001. The current version provides that :
“The 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. The devolved administrations will be responsible for seeking such agreement as may be required for this purpose on an approach from the UK Government.”
The Memorandum has since helped lubricate what might otherwise be tricky legislative sticking points between Westminster and the devolved institutions. However, it explicitly provided at paragraph 2 that it was a statement of political intent and that it did not create legal obligations .
Then came an interesting statutory development: section 2 of the Scotland Act 2016. It provides:
“(7) This section does not affect the power of the Parliament of the United Kingdom to make laws for Scotland.
(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.”
A similar provision appears in the Wales Bill.
The devolution questions
The Sewel point was one of the issues questions referred by the Northern Ireland courts : If primary legislation is required before Notice under Article 50 can be given, is the consent of the Northern Ireland Assembly required before that legislation is enacted?
It is important to note that the written cases of Scotland’s Lord Advocate and the Counsel General for Wales accepted that neither devolved legislature had a legal veto over the UK’s withdrawal from the EU. They argued, however, that the Sewel Convention was engaged due to the effects of EU withdrawal upon devolved matters.
The Court’s analysis
While the Justices were divided 8:3 over the main issue on the appeal, they answered the Sewel points unanimously.
They began by noting  that when enacting the EU constraints in the devolution Acts, Parliament proceeded on the assumption that the UK would be a member of the EU. “But”, it continued, “in imposing the EU constraints and empowering the devolved institutions to observe and implement EU law, the devolution legislation did not go further and require the United Kingdom to remain a member of the European Union. Within the United Kingdom, relations with the European Union, like other matters of foreign affairs, are reserved or excepted in the cases of Scotland and Northern Ireland, and are not devolved in the case of Wales…”.
The EU constraints were there to “make sure that the devolved democratic institutions do not place the United Kingdom in breach of its EU law obligations.” Withdrawal from the EU will therefore enhance devolved competence.
The Court noted a telling practical detail : while legislative consent motions had been passed in relation to numerous matters falling within devolved competence and where the competence of a devolved legislature or executive was to be altered, none had been laid in respect of legislation implementing changes to the competences of EU institutions (thereby affecting devolved competences). So the devolved parliaments/assemblies had not passed any such motions in relation to the Act incorporating the Lisbon Treaty into the European Communities Act 1972.
It was pointed out  that Lord Reed had previously recognised the political nature of the Sewel Convention in a case he heard in the Inner House of the Court of Session. The Justices also highlighted the provision within the Bill of Rights that “Proceedings in Parliament ought not to be impeached or questioned in any Court or Place out of Parliament.”
They also drew upon the opinions of their counterparts in the Supreme Court of Canada in Re Resolution to Amend the Constitution  1 SCR 753. In that case, the Attorney General of Manitoba had asserted that a convention may “crystallize into law and that the requirement of provincial consent to the kind of resolution that we have here, although in origin political, has become a rule of law.” That proposition was rejected:
“The very nature of a convention, as political in inception and as depending on a consistent course of political recognition by those for whose benefit and to whose detriment (if any) the convention developed over a considerable period of time is inconsistent with its legal enforcement.”
Lord Neuberger and his colleagues expressed  a similar sentiment:
“Judges therefore are neither the parents nor the guardians of political conventions; they are merely observers. As such, they can recognise the operation of a political convention in the context of deciding a legal question […], but they cannot give legal rulings on its operation or scope, because those matters are determined within the political world. […].”
The Court also cited a Privy Council case that shows that the idea of legislative consent motions was not invented by Lord Sewel but had a prior existence in the UK’s relations with the government of Southern Rhodesia. The Board in that case considered the Southern Rhodesia arrangement to be “a very important convention but it had no legal effect in limiting the power of Parliament.” Lord Reid described constitutionality as a concept that extends beyond questions of vires:
“It is often said that it would be unconstitutional for the UK Parliament to do certain things, meaning that the moral, political and other reasons against them are so strong that most people would regard it as highly improper if Parliament did these things. But that does not mean that it is beyond the power of Parliament to do such things. If Parliament chose to do any of them the courts could not hold the Act of Parliament invalid.” 
Neither did the references to the Convention in the Scotland Act 2016 or the Wales Bill give the Convention a new, legally-enforceable lease of life. They merely “recognised” that the UK Parliament “will not normally” legislate with regard to devolved matters without consent. “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.” As Prof Mark Elliot comments, in clarifying this point, “the Court reveals the statutory provision to be nothing more than a political token in legislative garb.”
All that said, the Supreme Court stressed that it did not underestimate the importance of constitutional conventions, some of which play a fundamental role in the operation of our constitution. “But the policing of its scope and the manner of its operation does not lie within the constitutional remit of the judiciary, which is to protect the rule of law”. 
So the Sewel Convention might grease the constitutional wheels but cannot – from a legal perspective, at least – stop them from turning. As the Court considered that the Convention was effectively non-justiciable, this obviated the need to decide whether the Article 50 legislation would fall within its scope.
Yet the Scottish First Minister’s response to the Brexit ruling seems to confirm the prophecy of Chief Justice Laskin and Justices Estey and MacIntyre in the Canadian case:
“The sanction for non-observance of a convention is political in that disregard of a convention may lead to political defeat, to loss of office, or to other political consequences…”.
The Brexit intervention might be viewed as having been a win-win situation for Nicola Sturgeon – either the Supreme Court’s analysis of Sewel would in some way cement Scotland’s place at the Article 50 table, or it would provide further evidence of the Westminster establishment freezing Scotland out of the process of EU withdrawal. “… [I]t is becoming clearer by the day”, said Ms Sturgeon, “that Scotland’s voice is simply not being heard or listened to within the UK. The claims about Scotland being an equal partner are being exposed as nothing more than empty rhetoric and the very foundations of the devolution settlement that are supposed to protect our interests – such as the statutory embedding of the Sewel Convention – are being shown to be worthless.”
The First Minister also announced that a legislative consent motion will be brought so that “the Scottish Parliament has the opportunity to vote on whether it consents to the triggering of Article 50.” This could enable the Scottish Government to say that not only did the Scottish people vote against Brexit, they voted against triggering Article 50 through their representatives in Holyrood, and still the UK ignored them.
However, the Memorandum provides for legislative consent “… on an approach from the UK Government”. Such an approach seems unlikely judging by the UK Government’s comments:
“The devolution settlement is clear that foreign affairs are reserved to the UK Parliament. The well-established Sewel Convention applies only to devolved matters.”
In the absence of an approach, even the political basis for a Sewel motion may be questionable.
The Court’s analysis of the Sewel Convention could also prove instructive in predicting how another question might in due course be answered by the judiciary: whether the devolved institutions can have a say in the repeal of the Human Rights Act 1998, and/or withdrawal from the European Convention. This was the subject of a previous post on this blog by David Scott.
For now at least, the Supreme Court’s approach to Sewel may have eased some of the constitutional headaches the UK Government might have feared in relation to those plans.