The House of Lords Constitution Committee has issued its report on the Scotland Bill. I have written before on this blog about the Draft Clauses of the Scotland Bill that were published earlier this year, drawing particular attention to Draft Clauses 1 and 2 concerning the ‘permanence’ of the Scottish Parliament and the recognition in statute of the Sewel Convention. This brief post simply draws attention to what the Committee’s report on the Scotland Bill itself has to say about these matters.

Clause 1: ‘Permanence’

Clause 1 of the Bill, concerning ‘permanence’, provides for a new section 63A to be inserted into the Scotland Act 1998:

(1) The Scottish Parliament and the Scottish Government are a permanent part of the United Kingdom’s constitutional arrangements.

(2) The purpose of this section is, with due regard to the other provisions of this Act, to signify the commitment of the Parliament and Government of the United Kingdom to the Scottish Parliament and the Scottish Government.

(3) In view of that commitment it is declared that the Scottish Parliament and the Scottish Government are not to be abolished except on the basis of a decision of the people of Scotland voting in a referendum.

In relation to these provisions, the Committee notes that

unlike Draft Clause 1 [proposed section 63A(1)] does not say that the Scottish Parliament and Government are ‘recognised’ as permanent, but states boldly that they are permanent. Secondly, [proposed section 63A(2)] signifies the commitment of the Parliament and Government of the United Kingdom to the Scottish Parliament and the Scottish Government. On the one hand, this might serve to weaken the effect of the section as a whole: if the purpose of the section is to “signify the commitment”, then that might be taken to mean that it is not the purpose of the section to (among other things) prevent the UK Parliament from going back on that commitment. But another reading, and the one seemingly more consistent with the overall thrust of the new section seen in the light of the Vow, the Smith Commission and subsequent events, is that this is indeed an explicit attempt to make clear what is intended by the Clause as a whole; [proposed section 63A(2)] is in effect an aid to interpretation that affirms Parliament’s commitment to the permanence of the Scottish institutions.

The Committee points out that:

The most significant provision is [proposed section 63A(3)]. This introduces a step by which Parliament appears to make its own legislative competence contingent upon an intervening stage, namely a referendum result in Scotland in favour of abolition of the Scottish Parliament. This new clause may be seen as something of a half-way house; a contingent rather than an absolute form of self-limitation. It is not that Parliament cannot abolish the Scottish Parliament, but that it has circumscribed the conditions under which it may do so by creating the referendum requirement.

Noting that it is ‘by no means clear what view the Supreme Court would take’ if the referendum requirement were ever tested, the Committee goes on to say that:

In our report on the Draft Clauses we drew a distinction between the political improbability that Parliament would abolish the Scottish Parliament without consent, and the fact that it retained the constitutional authority to do so. It seems that, with the revised wording of Clause 1, this distinction hangs by a thread. It is a fundamental principle of the UK constitution that Parliament is sovereign and that no Parliament may bind its successors. There is now a strong argument that Parliament is seeking to limit its own competence in a way that the courts may seek to uphold in future given that it rests on a requirement for popular consent. While we recognise that it is extremely unlikely that this will ever be tested in the courts, it is nonetheless symbolically important and we are concerned that these provisions, as currently worded, risk introducing uncertainty concerning the absolute nature of parliamentary sovereignty where there should be none.

Clause 2: The Sewel Convention

Clause 2, which deals with the Sewel Convention, provides for a new section 28(8) to be inserted into the Scotland Act 1998. Section 28(7) presently provides that section 28—which confers legislative authority upon the Scottish Parliament—’does not affect the power of the Parliament of the United Kingdom to make laws for Scotland’. However, new section 28(8) would say:

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.

The Committee points out that this appears only to acknowledge part of the Convention. In particular, clause 2 makes no reference to that aspect of the Convention which is concerned with UK legislation altering the devolved competence of devolved legislatures and administrations, as distinct from that part of the Convention which is concerned with UK legislation on devolved matters. The Committee notes that this does not sit entirely comfortably with the fact that:

The UK Government seems to have accepted that the convention covers bills that will change the legislative competence of the Scottish Parliament either restrictively or in an empowering way. The Scottish Government also takes an expansive view of the convention.These differences in understanding could be a source of future disagreement and potentially of legal dispute. We invite the Government to clarify its understanding of the reach of this convention, and the meaning of the word “normally” in this context.

The Committee goes on to say that:

It could also be the case that Clause 1 will impact upon the interpretation given to Clause 2. A parliament recognised as permanent and in relation to whose existence Parliament has sought to limit its own competence will, in the eyes of many, acquire an even stronger constitutional status than that which it currently enjoys. By placing the Sewel Convention in statute, the Government risks introducing a perception that the validity of laws passed by the UK Parliament would be justiciable should they contravene (or be argued to contravene) the Sewel Convention as set out in statute. We recognise that the use of the word “normally” seems to make clear that Parliament will still have the legal power to legislate for Scotland, even on devolved matters, without the consent of the Scottish Parliament. Nonetheless, in combination with Clause 1, which appears to seek to limit Parliament’s competence with regard to the devolved institutions, we are concerned that Clause 2 risks creating a route through which the courts might be drawn inappropriately into an area that has previously been within the jurisdiction of Parliament alone, namely its competence to make law.

The Committee comments in its report on a number of other aspects of the Bill and on certain matters concerning the process by which the Bill has been taken forward. The full report can be read here.

This post is written in a purely personal capacity. In particular, it is not written in my capacity as Legal Adviser to the House of Lords Constitution Committee. 

Posted by Mark Elliott

Mark Elliott is Professor of Public Law at the University of Cambridge, a Fellow of St Catharine's College, Cambridge, and Legal Adviser to the House of Lords Constitution Committee. All views on this blog are expressed in a purely personal capacity.