I rise to speak to amendments 39, 4 and 41 on the Sewel convention. As Members will know, the convention is quite well established. In the debate on the Scotland Bill 1998, Lord Sewel, the Parliamentary Under-Secretary of State at the Scottish Office, said that
“we would expect a convention to be established that Westminster would not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish parliament.”—[Official Report, House of Lords, 21 July 1998; Vol. 592, c. 791.]
That was accepted, and the Sewel convention became a reality.
As the Law Society of Scotland has said, it is true that since the enactment of that Bill there is agreement that the convention has been successful, and it has been adhered to by successive Parliaments. The Smith commission gave a firm commitment:
“The Sewel Convention will be put on a statutory footing.”
That was a clear and unambiguous statement. On the face of it, the Government’s draft legislation honoured the commitment that had been given, but I suggest that there are weaknesses in what the Government have proposed in this Bill.
I want to refer to the excellent work done by the Political and Constitutional Reform Committee. It has been pointed out that the Sewel convention has been distilled in the Government’s interpretation of it. Clause 2 refers only to the convention’s applicability in respect of devolved matters, and the convention also applies to legislation affecting the competences of the devolved institutions. We are concerned that, in some ways, what has happened in practice is not quite recognised in the Bill.
We are also concerned about the way in which the convention is to be placed on a statutory footing. Students of British constitutional history will recognise that,
according to Dicey’s principle, this British Parliament has ultimate sovereignty. Such a statutory footing recognises that constitutional reality, but does not challenge it or take it forward in any way whatever. That is somewhat unfortunate and certainly worthy of debate. The statutory footing, in reality, does not count for anything because what we have is essentially a summation of the Sewel convention that is little more than a political statement. Indeed, the Political and Constitutional Reform Committee quoted academics as saying that the clause was “legally vacuous” and
“like a bowl of jelly”.
We should be concerned about that.
It is noteworthy that the House of Lords Constitution Committee, which is highly regarded by many people, said, in its rather more sedate way, that
“it can be said that the new provision will recognise the existence of the Sewel convention rather than turn it into a legally binding principle.”
That is an extremely important phrase. Although those of us who are committed firmly to the Sewel principle recognise that there is no challenge to the convention, who knows what will happen in the future? That is why it should be legally binding, not just on this Government, but on all future Governments of any political complexion. Those issues need to be aired fully in considering the Sewel convention, because they are important and fundamental to the Bill.