Clauses 1 and 2 of the Scotland Bill: Government Response to House of Lords Constitution Committee

I have written in previous posts about the Scotland Bill and, in particular, the possible constitutional implications—including for the doctrine of parliamentary sovereignty—of clauses 1 and 2 of the Bill, which respectively concern the ‘permanence’ of the Scottish Parliament and Government and the Sewel Convention. As noted in a previous post, the House of Lords Constitution Committee drew attention to these matters in its recent report on the Scotland Bill. The Government has now issued a response to the Committee’s report which has been published on the Committee’s website.

On clause 1, concerning the permanence of the Scottish devolved institutions, Scotland Office Minister Lord Dunlop writes:

[T]he Smith Commission’s intention was not that the constitutional position be changed, but that legislation should accurately reflect what the political understanding already is: that the Scottish Parliament and Scottish Government are permanent parts of the United Kingdom’s constitutional arrangements. The Government’s amendments at Report Stage in the House of Commons strengthened the provision, but the principle of parliamentary sovereignty remains; constitutionally the UK Parliament cannot bind a successive Parliament. The Government’s approach to the clauses recognises this.

On clause 2, concerning the Sewel Convention, the Minister has the following to say:

The Committee’s Report commented on Clause 2 of the Bill. This clause delivers paragraph 22 of the Smith Commission which sets out that ‘The Sewel convention will be put on a statutory footing.’ The Sewel convention was never intended to change the sovereignty of the UK Parliament, nor was it intended to prevent the UK Parliament from making laws, across the United Kingdom. As with Clause 1, the intention of the Smith Commission was not that the constitutional position be amended, but that legislation accurately reflect what the political understanding already is. Clause 2 simply sets out that where legislation in the UK Parliament relates to a devolved area, consent will normally be obtained. The use of the word ‘normally’ in clause 2 replicates the language of the Sewel convention.

The Government’s use of the terms ‘constitutional position’ and ‘political understanding’ is interesting. In particular, it suggests: (a) that on the Government’s view, clauses 1 and 2 do not impinge upon the Westminster Parliament’s sovereignty in a technical, legal sense; (b) that it follows that any constraining effect is political in nature; and (c) that no constitutional change would therefore be produced by clauses 1 and 2. This implies a bright-line distinction between the constitution’s legal and political dimensions—whereby the ‘constitutional’ position is to be understood in only legal terms—that may be unwarranted. In particular, such an analysis sits uncomfortably with the fact that the British constitution takes the form of a curious admixture of its legal and political component elements, such that constitutional change cannot fully be appreciated through an exclusively legal lens.

My views on clauses 1 and 2 (as they were originally framed in the Draft Clauses) are set out in more detail here.

This post is written in a purely personal capacity.