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ion you didn t find it in any law but surely the scotland act must make some kind of difference surely there was some point in including sewel in the 2016 act if there wasn t if the idea westminster will not normally legislate for devolved matters without consent is just empty words just hot political air then why the devil did mps do it the same thought struck lord sumption during the hearing but it cannot be described as a purely political force once it is enacted in a statute he asked do you submit its incorporation as an act of parliament makes no difference to its legal effect he wondered richard keen s answer was consistent with the orthodox logic of his submission but it remains politically stark yes he said the statutory recognition of sewel is of no legal significance whatever the correct legal position he concluded is that westminster is sovereign and may legislate at any time on any matter as graeme cowie observed in the comments at the end of my last blog anyone paying even the most superficial of attention knew sections 1 and 2 of the scotland act 2016 were weasel words that may be true of constitutional scholars like graeme but for ordinary folk who followed the passage of the scotland act through westminster and holyrood who listened to david mundell s defence of its provisions richard keen s uncompromising submissions today may come as something of an unwelcome surprise posted by lallands peat worrier at 4 20 pm 1768 comments email this blogthis share to twitter share to facebook labels david mundell eu lord sumption richard keen qc sewel motions uk supreme court 1 december 2016 a quintessential matter of political judgment for westminster last friday the lord advocate published the scottish government s intervention in the ongoing brexit litigation before the uk supreme court james wolffe qc weighed in behind the divisional court s judgment arguing that the royal prerogative cannot lawfully be used to trigger article 50 but scotland s senior law officer also ranged beyond that he points to the sewel convention arguing that if westminster legislates to withdraw the uk from the european union the scottish parliament must be consulted the lord advocate isn t arguing that holyrood has a veto but that the uk constitution now expects mps to canvas the view of msps before legislating on devolved matters modern understandings of the sewel convention generally recognise that it has two limbs firstly that westminster ought to seek the consent of holyrood before changing scots law on issues falling within the scottish parliament s purview like health or education or family law and secondly that any changes to the powers of the scottish parliament itself ought to take account of msps views the same goes for any changes to the power of scottish ministers whether enhancing or curtailing their legal authority this afternoon the uk government have published their counterblast against the lord advocate s submissions and parallel arguments made by the law officers of the northern irish and welsh administrations you could only expect richard keen and his colleagues to resist james wolffe s arguments but as jonathan mitchell qc tweets this afternoon the uk government s legal answers have a strangely tetchy tone supercilious and ill tempered seasoned barrister sir paul jenkins couldn t recall a case where the government thought it wise to descend to such rudeness which he describes as unnecessary and inappropriate jo maugham qc characterises the submissions as fantastically so in a nutshell they are that devolution is irrelevant to the issues before the court that foreign affairs is reserved and that the devolution legislation cannot add to the arguments in the case in any material way but perhaps most eye catching are the uk government s observations on the need to seek consent from any of the devolved legislatures the court is being invited to stray into areas of political judgment rather than legal adjudication they argue the supreme court should resist that invitation so how do they reach this conclusion while recognising that the statutes establishing edinburgh belfast and cardiff assemblies are very significant pieces of legislation they contend that the sewel convention is not justiciable which is to say unsuitable for judicial decision making it is they say a legal irrelevance just a political convention and not part of uk constitutional law in support of this view they cite lord reed one of the justices who will hear this case in 2012 in the imperial tobacco case lord reed described the convention as a political restriction on parliament s ability to amend the scotland act unilaterally not a legal restriction and as far as this goes this is a perfectly orthodox account of the status of constitutional conventions in the uk they have generally been regarded as rules of constitutional morality rather than rules of constitutional law susceptible to enforcement by the court but where the uk government s case hits a potential wrinkle is that westminster chose in 2016 to inscribe this convention on the face of the scotland act they simultaneously recognised the permanence of the scottish parliament while lord reed was absolutely right in 2012 that the sewel convention was only a political restriction westminster had undertaken to abide by this isn t straightforwardly the case in 2016 the uk government s submission strikingly has nothing whatever to say about this change and the impact it might have on their arguments about the justiciability and enforceability of the convention back in 2014 professor mark elliott tacked up this informative article about the different potential legal effects of these innovations in its legal papers the uk government body swerves these implications altogether so does the statutory recognition of sewel change anything maybe maybe not as a number of us pointed out at the time david mundell formulated this statutory recognition in a consciously sleekit way the new scotland act recognised only that the parliament of the united kingdom will not normally legislate with regard to devolved matters without the consent of the scottish parliament normally isn t a word you encounter very often in statutes must and may certainly but not normally uk lawyers unsurprisingly have hung up their wigs on these words referring to the scotland act they suggest the convention does not purport to prescribe an absolute rule its content is only that westminster would not normally legislate and here is the kicker they argue that whether circumstances are normal is a quintessential matter of political judgment for the westminster parliament and not the courts there are no judicial standards by which to measure such a question in the context of a political convention you didn t hear this kind of reasoning at least in public when david mundell was talking up the virtues of the new act invoking the idea of a new parliament new powers and new partnerships for the uk government lawyers we end with the orthodox diceyan vision of the tyrannical patriarch and the erratic father figure never needs to keep his word or follow his own rules whatever forms of legal recognition or apparent constraints westminster inscribes on its constitutional legislation the westminster parliament is sovereign and may legislate at any time on any matter any attempt to enforce the convention directly or indirectly would be a straightforward impingement on that sovereignty theresa may s legal counsellors may be resisting any attempt for parliament to take back control over brexit but they take holyrood s subordination to westminster for granted for richard keen and his colleagues power devolved is ultimately power retained whatever political grace notes ministers write into the latest iteration of devolution whatever our constitutional statutes anticipate and provide and if the strident haughty tone of this reply is anything to go by how very dare you argue otherwise you can read the whole uk government submission here posted by lallands peat worrier at 3 59 pm 66 comments email this blogthis share to twitter share to facebook labels james wolffe qc jonathan mitchell qc lord reed richard keen qc scotland act 1998 sewel motions uk supreme court 26 november 2016 ane absolute power to cass annull dissable contrair to law last night the lord advocate james wolffe qc published the scottish government s written intervention in the article 50 litigation the case is scheduled to be heard by all eleven of the uk supreme court s justices between the 5th and 8th of december it is as you d expect a weighty legal document which you may not find instantly digestible a quick scan throws up a range of old constitutional familiars the claim of right act 1689 the act of union the sewel convention and even our old friend maccormick v lord advocate but what does all this mean when you boil it all down what is the scottish government really arguing for in the brexit hearing in a nutshell james wolffe is pursuing two distinct lines of argument the first focuses on whether ministers can use the royal prerogative to activate article 50 and the united kingdom s departure from the european union the second concerns the so called sewel convention is holyrood s consent constitutionally necessary if article 50 is to be activated let s start with the first line of argument the royal prerogative is the name given to the residual legal powers of the crown its exercise entitles her majesty s government to enter treaties with foreign powers or even to declare war without reference to parliament earlier this year the three judges of the divisional court held that theresa may s government could not use the foreign affairs prerogative to activate article 50 the lord chief held that westminster must pass legislation to begin disentangling britain from the eu and stripping away the rights in domestic law connected to it the scottish government have weighed in behind this argument but appeal to different sources the lord advocate invokes the preamble to the claim of right act passed by the old scottish parliament in 1689 in the aftermath of the eviction of king james vii and ii from the country and the throne parliamentarians slammed james for having corrupted his rule from a legall limited monarchy to ane arbitrary despotick power and in a publick proclamation asserted ane absolute power to cass annull and dissable all the lawes their 1689 act states any attempt to use crown authority to cass annull and dissable laws was itself contrair to law here the 1706 and 1707 acts of union warrant a passing mention as james wolffe points out article xviii of the acts provides that all other laws in use within the kingdom of scotland do after the union and notwithstandng thereof remain in the same force as before but alterable by the parliament of great britain notice the critical point here at the foundation of the united kingdom it was parliament and not the crown which was given power to change the law of scotland read together he suggests these sources confirm the divisional court s judgment that it is for parliament not the crown in exercise of its royal prerogatives to alter the law of the land here the scottish government s argument shifts forwards towards more contemporary sources wolffe argues that if theresa may was entitled to use the prerogative to activate article 50 its effect would hollow out a range of laws currently applicable in scotland including the scotland act which assumes the uk including scotland is a member of the eu the devolution legislation requires holyrood to respect the rules and regulations of eu law so too must scottish ministers the effect of withdrawal from the eu he contends would be to cass annul or disable these provisions a step which the lord advocate concludes may not compatibly with the claim of right act 1689 be effected by an act of the prerogative alone if the supreme court accepted this line of argument it would be for the westminster parliament to legislate for article 50 but where stands holyrood then here the lord advocate s case shifts onto different terrain and its second main theme is holyrood s consent required or not to legislate for article 50 as av dicey famously maintained westminster is sovereign under the british constitution between 1707 and 1998 mps legislated for scotland devolution didn t deprive the uk parliament of this power this is recognised in the scotland act 1998 itself section 28 7 stresses that devolution does not affect the power of the parliament of the united kingdom to make laws for scotland but since 1998 the interaction between the two parliaments has been governed by a constitutional convention sometimes called the sewel convention the scotland act 2016 recognised the long standing rule of constitutional morality that westminster will not normally legislate with regard to devolved matters without consent this convention is generally regarded as having two limbs firstly if the uk parliament wants to pass legislation in areas lying within holyrood s powers on health say education or family law mps should seek consent from msps but beyond that if westminster legislation would expand or contract the powers of scottish parliament or its ministers this too requires consent a good example of this was the additional powers devolved by the scotland act 2016 itself in his brief the lord advocate argues that withdrawal of the uk form the eu would alter the competence of the scottish parliament and government and the law applicable in scotland within devolved competence a bill to authorise withdrawal would accordingly engage the legislative consent convention holyrood s consent he says must be sought for the sake of argument let s say that the uk supreme court agree with him then what does the convention have any legal teeth consider for example the eminently plausible scenario that the majority in holyrood refuses to give its consent to any article 50 bill unless the uk government commits to pursuing the gentlest brexit possible say also that theresa may is unwilling to bow to this pressure and presses on with an article 50 bill and the hardest of hard brexits is the lord advocate seriously suggesting holyrood has the legal power to frustrate westminster in law does the scottish parliament hold a brexit veto the answer may disappoint you and irate headline writers everywhere if you read the scottish government s submissions carefully they actually conclude holyrood has no legal power to block an article 50 bill passed by westminster if the uk parliament were to choose to pass an act of parliament without holyrood s consent the lord advocate concedes the courts could not decline to recognise the validity of the resulting act he accepts that holyrood has no legal trump over brexit politically of course overriding holyrood and ignoring its objections would embroil the two governments and parliaments in a potentially poison...
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