The Draft Scotland Bill — which aims to implement “the vow” made by the leaders of the major UK political parties in the closing days of the referendum campaign — has now been published. The first two sections of the Draft Bill are of interest (to me, at least) from a UK constitutional law perspective. They purport to implement proposals contained in the Report of the Smith Commission for Further Devolution of Powers to the Scottish Parliament to make the Scottish Parliament “permanent” and to put the Sewel convention — according to which the UK Parliament will not normally intervene in devolved affairs absent the consent of the relevant devolved legislature — “on a statutory footing”.
A “permanent” Scottish Parliament
As to the first matter, clause 1 of the Bill, if enacted, would insert a new section 1(1A) into the Scotland Act 1998, which would provide that:
A Scottish Parliament is recognised as a permanent part of the United Kingdom’s constitutional arrangements.
This adopts a formulation consistent with the language of the Smith Commission report itself, but less ambitious than the way in which Lord Smith characterised the proposal in his foreword. As I noted in an earlier post, Lord Smith said that the Scottish Parliament “will be made permanent”. In contrast, the the Report merely said that “UK legislation will state that the Scottish Parliament and Scottish Government are permanent institutions” (emphasis added). There is a world of constitutional difference between these two ambitions, making something permanent being an obviously different — and more radical — enterprise than saying that it is so.
The Draft Bill sensibly opts for the latter approach — sensibly because it is far from clear that any provision purporting to make the Scottish Parliament permanent would be worth the paper upon which it was printed. A provision of the latter type would amount to an attempt absolutely to entrench the statutory provision — i.e. section 1(1) of the Scotland Act 1998 — that provides for the existence of the Scottish Parliament. However, as Laws LJ put it in Thoburn v Sunderland City Council [2002] EWHC 195 (Admin), [2003] QB 151: “Being sovereign, [the UK Parliament] cannot abandon its sovereignty.”
However, while the Draft Bill does not set out to do the constitutionally impossible, it is not clear exactly what it does set out to do. It does not, for instance, purport to protect the Scottish Parliament through contingent entrenchment. The Bill might, for example, have provided that section 1(1) of the Scotland Act 1998 could not be repealed or amended except in defined circumstances (e.g. with the Scottish Parliament’s consent). Whether such an attempt at contingent entrenchment would have worked is unclear, although there are some grounds — such as certain dicta in Jackson v Attorney-General [2005] UKHL 56, [2006] 1 AC 262 — for suggesting that contingent entrenchment may, just may, be possible.
What, then, are we to make of a clause providing that the Scottish Parliament “is recognised” as a permanent part of the UK’s constitutional arrangements? The best interpretation of such a provision is that it would lack any legal effect whatever. Instead, its consequences are likely to be entirely symbolic. The proposed provision would amount to a clear commitment on the part of the Westminster Parliament to desist from abolishing the Scottish Parliament. But since no-one would ever dream as a matter of realpolitik that the UK Parliament could in any event do such a thing, it is hard to see what practical difference the proposed provision would make. To put the matter bluntly, the new provision would not legally stop the Westminster Parliament from doing anything: in particular, it would remain legally competent to abolish the Scottish Parliament. All that the provision would therefore do would be to supply of a statement of intent that the politically inconceivable step of effecting such an abolition would not be taken by a sovereign Parliament legally capable of doing so.
The Sewel Convention
A similar point can be made, more briefly, in relation to the Sewel Convention. Section 28 of the Scotland Act 1998 authorises the Scottish Parliament to enact legislation but provides in subsection (7) that:
This section does not affect the power of the Parliament of the United Kingdom to make laws for Scotland.
The Draft Scotland Bill envisages that subsection (7) would be supplemented by a new subsection (8) reading:
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 provision is intended to implement the Smith Commission’s proposal that the Sewel Convention should be placed “on a statutory footing”. It is important, however, to recognise what the proposed new subsection would and would not do. What it manifestly would not do is to turn the political constraint reflected in the Sewel Convention into a legal restraint: nothing in the proposed new subsection (8) purports legally to disable the Westminster Parliament from legislating for Scotland on devolved matters. (Nor could it, for reasons discussed above.) What is envisaged, therefore, is not taking the “rule” contained in the Sewel convention and turning it into a statutory, legal rule. Instead, what is proposed is enshrining — or at least acknowledging — the convention in a statute while leaving the convention as a convention.
Disorientating though this might at first seem viewed from an orthodox Diceyan perspective, a moment’s thought reveals that the position is actually very simple in legal terms: subsection (8) would have no legal effect. Its effect — as with the proposed new section 1(1A) concerning “permanence” — would be symbolic or, at the most, political. This does not mean that subsection (8) would be irrelevant: merely that it would be legally irrelevant. While it is virtually impossible to imagine circumstances in which the UK government would seek to procure legislation abolishing the Scottish Parliament (thus suggesting that proposed subsection 1(1A) is largely redundant), it is easier — but not easy — to envisage a scenario in which the UK institutions wished to legislate without the Scottish Parliament’s consent on a matter falling within the latter’s competence. Proposed subsection (8) would not legally prevent such legislation from being enacted, but it would likely make its enactment politically more difficult. That is so because while acknowledging the Sewel convention in statute does not turn the convention from a political into a hard legal restraint, legislative recognition of the convention arguably does invest it with greater political — and small-c constitutional — force. A UK government seeking to persuade the UK Parliament to legislate for Scotland against its wishes would always have faced a hard political time: but subsection (8) would make it harder still.
Concluding remarks
The aspects of clauses 1 and 2 of the Draft Scotland Bill considered in this post are legally vacuous. From one perspective, that might be a fatal criticism of those provisions. From another, broader, perspective, however, the significance of the clauses cannot be so easily dismissed. Constitutional history is replete with examples of the UK Parliament — for all that its sovereignty is constant and irremovable — effectively ceding power, the demise of Empire being the obvious example. Such precedents should caution against the equation of legal and real-world vacuity when it comes to the likes of clauses 1 and 2 of the Draft Scotland Bill. To be sure, they do not deprive the UK Parliament of any of its sovereign power as a matter of constitutional law. But they do serve to emphasise the increasingly rigid (if not legally unimpeachable) nature of the dividing lines that shape the relationship between the UK and Scottish Parliaments. Legally empty though they are, clauses 1 and 2 nevertheless contribute to or at least affirm the emergence of a constitutional tableau in which the orthodox characterisation of devolution as a reversible and benevolent concession by an omnipotent central legislature looks increasingly anachronistic.
Public Law for Everyone 