Sewel convention essay PDF

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Essay on the controversy of the Sewel Convention, whether it is a legal rule or a political convention, with particular references to Miller ( R (on the application of Miller and another) v Secretary of State for Exiting the European Union [2017] UKSC 5 [146]) and section 28(8) of the Scotland Act 2...

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The Sewel Convention is a political convention found in section 2 of Scotland Act1. It applies where Westminster Parliament wishes to legislate on matters which will impact devolved nations, and consequently Parliament would do so “normally” with the consent of devolved institutions2, giving the convention a persuasive status. A political convention cannot by nature be enforced by the courts3, which hence presents challenges when deciding national cases, such as Miller4. Therefore, this essay seeks to discuss the persuasive, as opposed to predominant, constitutional status of the Sewel Convention.

There exists controversy whether the Sewel Convention is a legal rule or a political convention. Miller5 recognised the Convention as a new form of constitutional convention, yet it is still not a legal rule, despite being embodied in statute6. This is because of the “nature of the content”7 as the wording of s28 implies that Parliament was “not seeking to convert the Sewel Convention into a rule which can be interpreted, let alone enforced, by the courts”9. However, the Sewel Convention has constitutional status as it changes the UK’s territorial constitution from a unitary state system of devolution, to a more federal model10. This is shown in the Canadian case of Re Resolution11 where the courts said that amending the constitution without consent from other “provinces would be to violate a

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Scotland Act 2016 UK Parliament, ‘Sewel Convention’ , accessed 29 October 2018 3 Re Resolution to amend the Constitution [1981] 1 SCR 753 4 R (on the application of Miller and another) v Secretary of State for Exiting the European Union [2017] UKSC 5 [146] 5 ibid 6 Joe Atkinson, ‘Parliamentary Intent and the Sewel Convention as a Legislatively Entrenched Political Convention’ (UK Constitutional Law Blog, 10 February 2017), accessed 8 October 2018 7 ibid 8 Scotland Act (n 1) 9 Atkinson (n 6) 10 Aileen McHarg, ‘Constitutional Change and Territorial Consent: The Miller Case and the Sewel Convention’ in Elliott, Williams and Young (eds), The UK Constitution After Miller: Brexit and Beyond (Hart, 2018) 155 11 Re Resolution (n 2) 2

constitutional convention”12. Although, in practice in the UK, attempts to enforce political conventions in courts have failed (Madzimbamuto v Lardner-Burke13), highlighting that political conventions, like the Sewel Convention, do not have high constitutional status.

Miller14 further affirmed the idea that the Sewel Convention’s constitutional status was not overarching. This is because; courts found “there was no legal requirement to obtain the consent of the devolved legislatures before notification was given of leaving the European Union”15 (EU). Similarly, the statute’s wording further implies that Westminster is not obliged to obtain consent from devolved nations, as consent is only “normally” needed. If none is acquired, one can argue that Westminster Parliament has used the “not normally” proviso as a “departure from the EU is an exceptional circumstance”16. Despite this, the fact that consent is “normally” required for legislation makes it unclear when Westminster does need consent, therefore they are more likely to seek it, which would enhance the constitutional status of the Sewel Convention. Nevertheless, in both Miller17 and McCord18 case, the argument for devolved consent was unsuccessful and the courts held that the Sewel Convention “did not give rise to legally enforceable obligations”19.

Section28(8) Scotland Act20, under the Sewel Convention, is non-justiciable. This section “does not impose a legal constraint…on a UK Government’s desire to legislation within devolved competences”21. This highlights the fact that the Sewel Convention solely has

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Re Resolution (n 2) Madzimbamuto v Lardner-Burke [1969] 1 A.C. 645 14 R (n 3) 15 Tom Mullen, ‘The Brexit Case and Constitutional Conventions’ (2017) 21 Edinburgh Law Review 442 16 ibid 17 R (n 3) 18 McCord v Agnew [2016] NIQB 85 19 McHarg (n 8) 20 Scotland Act 1998 (Acts of the Scottish Parliament) 21 Mullen (n 14) 13

political force in the Westminster. Though, s2(8)22 gives the Sewel Convention higher constitutional status as it gives it statutory recognition in Scotland, making it a permanent feature of the devolution settlement. However, even with this permanence, judges cannot rule on the basis of political conventions, as “the validity of conventions cannot be the subject of proceedings in a court of law”23.

To conclude, even though the Sewel Convention is statutorily recognised (s224), the legal status of the Convention does not change. This means that conventions of devolved nations, like the Sewel Convention, only have political force in the Westminster Parliament and courts cannot enforce them.

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Scotland Act 2016 (n 1) Colin Munro, ‘What is a Constitution?’ [1983] PL 563 24 Section 2 Scotland Act 2016 23

Bibliography: 1. Aileen McHarg, ‘Constitutional Change and Territorial Consent: The Miller Case and the Sewel Convention’ in Elliott, Williams and Young (eds), The UK Constitution After Miller: Brexit and Beyond (Hart, 2018) 155 2. Colin Munro, ‘What is a Constitution?’ [1983] PL 563 3. Joe Atkinson, ‘Parliamentary Intent and the Sewel Convention as a Legislatively Entrenched Political Convention’ (UK Constitutional Law Blog, 10 February 2017), accessed 8 October 2018 4. Madzimbamuto v Lardner-Burke [1969] 1 A.C. 645 5. McCord v Agnew [2016] NIQB 85 6. R (on the application of Miller and another) v Secretary of State for Exiting the European Union [2017] UKSC 5 [146] 7. Re Resolution to amend the Constitution [1981] 1 SCR 753 8. Scotland Act 1998 (Acts of the Scottish Parliament) 9. Scotland Act 2016 10. Tom Mullen, ‘The Brexit Case and Constitutional Conventions’ (2017) 21 Edinburgh Law Review 442 11. UK Parliament, ‘Sewel Convention’ , accessed 29 October 2018...