The Sewel Convention is no longer fit for purpose - Fiona Killen

The Constitution, Europe, External Affairs and Culture Committee (CEEACC) of the Scottish Parliament was busy last year, producing seven reports, one focusing on How Devolution is Changing Post-EU. The report raised issues warranting closer examination, including inter-governmental and inter-parliamentary relationships within the UK following Brexit.

It’s obvious that there’s a divergence of views between UK and devolved institutions about how devolution should operate in the ‘shared space’ between the UK and devolved Governments. In considering what remains after Brexit, the Committee pinpointed the issue of the Scottish Parliament having an opportunity to scrutinise legislation in devolved areas effectively, as one that needs addressing.

Looking at the Scotland Act 1998, it’s clear devolution didn’t involve a transfer of powers in devolved areas from the UK Parliament to the Scottish Parliament, but rather a sharing of powers. The essence of devolution is evident in the Scotland Act (s28), which states that this “does not affect the power of the Parliament of the United Kingdom to make laws for Scotland”.

The CEEAC considered whether current constitutional arrangements for the Scottish Parliament to give ‘consent’ to the UK Parliament legislating in devolved areas were fit for purpose. Often referred to as the ‘Sewel Convention’, the arrangements are that the UK Parliament will “not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish Parliament”. Although this convention is now stated in the Scotland Act, it remains unenforceable in law and leaves much to chance and interpretation. Frankly, one might wonder whether the words are worth the paper they are written on.

Fiona Killen is a partner, Harper Macleod

A mere convention stipulating that the UK Parliament should obtain consent from the Scottish Parliament might have seemed like a good idea at the time Lord Sewel uttered the words in the House of Lords, but there is now considerable, continuing disagreement between the UK and devolved legislatures regarding the Sewel convention’s effectiveness.

Assuming more significant constitutional change for Scotland is not imminent, greater clarity in how we are governed in devolved areas is much needed. This could be achieved by moving from a non-enforceable convention, to making it a legal requirement for the UK Parliament to obtain the consent of the Scottish Parliament, without exception, before passing legislation in devolved areas. Stopping short of an actual transfer of powers from the UK Parliament to the Scottish Parliament, a legal requirement for consent in all circumstances could help preserve the credibility and sustainability of the devolution settlement.

Some commentators argue the use of a convention here, rather than statute law, is necessary, because an imposition of legal constraints on the UK Parliament is incompatible with its ‘sovereign status’. Well, to quote one of our most accomplished judges, Lord Hope, “Parliamentary sovereignty is no longer, if it ever was, absolute ... It is no longer right to say that its freedom to legislate admits of no qualification whatever.”

In any properly functioning democracy, surely the people should be recognised as sovereign, rather than any organ of the state. As citizens, we cede freedoms to a government for the greater good, pay taxes to fund their activities and authorise Parliament through the ballot box to legislate on our behalf, but it should always be remembered that government and Parliament are answerable to us. Ultimately, sovereignty rests with the people and any contention to the contrary, as an excuse for failing to improve how we are governed and how laws are made, should be firmly resisted.

Fiona Killen is a partner, Harper Macleod (This opinion represents her personal views).