The way in which the UK Government has given effect in section 2 of the Scotland Act 2016 to the recommendation of the Smith Commission that the Sewel convention should be put on a statutory footing gives rise to a number of difficult constitutional questions for the Scottish and UK Parliaments and Governments and the courts.
The Smith Commission stated that it was agreed between all five of the participating Scottish political parties that "The Sewel Convention will be put on a statutory footing."
The UK Government has sought to give effect to this recommendation in section 2 of the Scotland Act 2016 which provides:
"2 The Sewel Convention
In section 28 of the Scotland Act 1998 (Acts of the Scottish Parliament) at the end add—
"(8) But it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament."
Two major concerns have been consistently expressed about this section since it first appeared in the form of draft clauses in January 2015:-
- whether it properly reflects what is understood to be the Sewel convention and, if not, what effect does it have upon the other cases where a UK Bill at present normally requires the consent of the Scottish Parliament; and
- whether its meaning and effect could become justiciable issues in a court of law and might even result in a judicial challenge to the validity of an Act of the UK Parliament which it is alleged has been enacted without the consent of the Scottish Parliament as required by that section.
Background to the Sewel convention
As is well known, the origins of what is known as the Sewel convention lie in what was said by Lord Sewel in the House of Lords on 21 July 1998 during the passage of what became the Scotland Act 1998. After explaining that what is now section 28(7) of that Act "makes it clear that the devolution of legislative competence to the Scottish Parliament does not affect the ability of Westminster to legislate for Scotland even in relation to devolved matters", Lord Sewel went on to say-
"However….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."
This passage is reflected in section 2 which inserts section 28(8) into that Act. This subsection is expressed as a qualification ("But") to the declaration of Parliamentary sovereignty in section 28(7) and is also expressed in virtually the same words as those used by Lord Sewel but with the addition of the words "It is recognised that" at the beginning of the subsection.
The original scope of the Sewel convention was extended by the Devolution Guidance Note 10 ("DGN10") which was issued by the Department of Constitutional Affairs in 1999. DGN 10 explained how the UK Government operates the convention in practice but it also extended the scope of the convention. It stated that the consent of the Scottish Parliament was normally required not only when a UK Bill makes provision for devolved matters but also when it alters the legislative competence of the Scottish Parliament or the executive competence of the Scottish Ministers even although these are reserved matters. (The legislative competence of the Scottish Parliament and the executive competence of the Scottish Ministers are referred to in this article as "devolved competence.")
No reason was given in DGN 10 for extending the scope of the Sewel convention in this way. But it is suggested that it reflects the consideration that, as part of the devolution settlement, the Scotland Act 1998 provided its own mechanisms for making alterations to the definition of devolved competence by means of Orders in Council which are subject to the mutual consent of both the Scottish the UK Parliaments. It would, therefore, be politically very controversial for the UK Government to seek to make such alterations unilaterally in a UK Bill without the consent of the Scottish Parliament.
Whatever the reason, this is how the Sewel convention has been operated in practice since 1999 and accepted as such by both the UK and Scottish Governments. It is now reflected in the Standing Orders of the Scottish Parliament which, since November 2005, describe a UK Bill, which requires the consent of the Scottish Parliament by what used to be called a Sewel motion and is now known as a Legislative Consent Motion ("LCM"), as a Bill which
"makes provision ….applying to Scotland for any purpose within the legislative competence of the Parliament, or which alters that legislative competence or the executive competence of the Scottish Ministers."
The most recent example of the Sewel convention being operated in this way is provided by the Supplementary LCM for the Scotland Bill 2016 which the Scottish Government lodged on 1 March 2016.
The UK Government view of the Sewel convention
However, section 2 only refers to the original scope of the Sewel convention and not to its scope as extended by DGN 10, despite the fact that this omission was consistently drawn to the UK Government's attention.
Three main reasons were put forward by the Advocate General, Lord Keen of Elie QC, in the House of Lords as to why the UK Government did not refer to the extended scope of the Sewel convention in DGN 10. He argued
- that section 2 gives effect to what the Smith Commission intended by the Sewel convention in paragraph 22 of their Report because it transposed the actual words used by Lord Sewel in 1998 and those words were reflected in the heading to that paragraph;
- that it is only in this strict sense that the Sewel convention as such is accepted by the UK Government. He argued that it was only enunciated by Lord Sewel in the context of acting as a qualification to the assertion that, despite devolution, the UK Parliament could still make laws with regard to devolved matters and that it was only in this sense that it is referred to in successive Memoranda of Understanding from 1999 to 2013 between the UK Government and the devolved administrations; and
- that the fact that section 2 did not give effect to the extension of this convention in DGN 10 was irrelevant because that extension was never strictly part of the Sewel convention. He described DGN10 as “not a document which was ever approved by either House of this Parliament but was developed by the Civil Service for the application and operation of what was understood by the Civil Service and everyone else to be the Sewel convention.” He referred to the extension as only "a working arrangement"  and as "a practice that grew up as a consequence of the convention having been entered into" and argued that it was not appropriate that it should be enshrined in statute.
The UK Government have taken a very narrow view of what is meant by the Sewel convention. As Lord Norton of Louth put it,
"There is a Sewel convention, as we have heard, but it is different from what Lord Sewel enunciated in 1998. Putting the words of Lord Sewel on the face of the Bill does not put the Sewel convention in statute. Indeed, the clause as it stands narrows and undermines the convention. It narrows it by omitting a practice that has developed and been pursued on a continuous basis, and it undermines it by removing the essential feature that established it as a convention."
What is the effect of section 2 upon which UK Bills require the consent of the Scottish Parliament?
There are concerns that the UK Government may have deliberately kept section 2 narrowly drawn in order to leave open the argument that any UK Bill, such as a UK Bill of Rights or, in the event of Brexit, a Bill repealing the European Communities Act 1972, which alters the definition of devolved competence, does not require the consent of the Scottish Parliament.
So it is necessary to consider whether section 2 has narrowed the effect of the Sewel convention as Lord Norton has suggested; and, if it has, whether it follows that a UK Bill which alters the definition of devolved competence would no longer normally require the consent of the Scottish Parliament; but if it still does, whether that requirement derives from the Sewel convention or from some other convention or practice.
What does the Sewel convention mean now?
Whatever was the previous understanding of the Sewel convention, its enactment in section 2 under the heading "The Sewel convention," would seem to render it very difficult to argue that it is now something other than what the UK Parliament has recognised it to be in that section.
Nevertheless, there may be two possible arguments for suggesting otherwise but neither seem particularly convincing.
Firstly, it might be argued that it would be possible to interpret the reference in section 2 to "devolved matters" to include a UK Bill which alters the definition of devolved competence. However, it would be very difficult to do this without an express provision to this effect. Although the expression "devolved matters" is not defined or used elsewhere in the Scotland Act 1998, it is generally understood to refer to a matter which is within the definition of devolved competence. But the Scottish Parliament is expressly prohibited from modifying the provisions in that Act which define that competence.
Secondly, the Scottish Government has also argued that, despite the enactment of the Sewel convention in section 2,
"The UK Government has made clear that [DGN10] remains the statement of the Sewel Convention in practice."
It was on this understanding that the Scottish Government recommended that the Scottish Parliament should consent to the Scotland Bill 2016 and this was subsequently done on 16 March 2016 . However, this appears to be putting a very favourable interpretation on what the UK Government has said.
In its White Paper in January 2015, the UK Government stated that "it is expected that the practice developed under [DGN10] will continue" and the Secretary of State for Scotland followed this at Commons Committee Stage of the Bill by saying that "the current good practice would continue". Furthermore, at Lords Third Reading, the Advocate General stated that the UK Parliament and Government would, as they had consistently done, continue to proceed "in accordance with DGN10 in the context of devolved matters". 
Unfortunately, all these statements are ambiguous as to whether they are referring only to that part of DGN 10 which refers to the Sewel convention as described in section 2, particularly that of the Advocate General with its reference to "devolved matters." They do not clearly indicate that the UK Government accept that part of DGN 10 which indicates that the consent of the Scottish Parliament will normally be required if a UK Bill proposed to alter the definition of devolved competence as part of the "Sewel convention in practice".
On the contrary, what does appear to be clear is that the UK Government no longer accepts that DGN 10 describes the Sewel convention. The Advocate General referred to DGN 10 simply as a "working arrangement" or a "practice." That is why section 2 only describes the Sewel convention in terms of the actual words used by Lord Sewel.
Is there another convention?
But the fact that the UK Government merely refer to DGN10 as a "practice" does not necessarily mean that it may not constitute a convention, even although it is no longer part of the Sewel convention as described in section 2.
In determining whether a "practice" can be called a convention, it is helpful to have regard to Sir Ivor Jennings' three tests for establishing whether a constitutional convention exists –
"Firstly, are there any precedents for the convention? Secondly, did the actors believe they were bound by a rule? and; Finally, is there a reason for the rule?
In the case of the "practice" in DGN10, these tests may be said to be met:
- the practice is precedented by having been part of what was understood to be the Sewel convention since 1999;
- there is a reason for it which can be said to be that, particularly having regard to the joint Order in Council procedure set out in the Scotland Act 1998, it would be politically very controversial for the UK Government to seek to make alterations unilaterally to the definition of devolved competence in a UK Bill without the consent of the Scottish Parliament; and
- the UK and Scottish Governments and Parliaments have observed that practice since 1999, and have considered themselves to be bound by it, in the same way and to the same extent as the other part of the Sewel convention which is described in section 2. It might be objected that the practice cannot strictly be called a convention because it is not an invariable practice as it includes the word "normally" which implies that it may on occasion not be followed. But the same also applies to the Sewel convention in section 2 and it may be thought to be even more politically inconceivable that the UK Government would unilaterally seek to alter the definition of devolved competence in a UK Bill than it would if it made provision for a devolved matter.
This view was echoed by Lord Wallace, who suggested that what is called a "practice" by the Advocate General was a convention and that there was therefore a
"two-tier [LCM] convention. There are the Sewel words, which are in statute, and the provisions that have triggered [LCMs] since the outset of the Scottish Parliament, and are found in [DGN10], which are not in statute."
Professor Neil Walker, the Regius Professor of Public Law at the University of Edinburgh, has also suggested that, despite the fact that only part of the Sewel convention has been enshrined in statute,
"I think that [DGN10] has to continue to apply because it specified a convention which applies regardless of what the law says"
Clearly the Scottish Government and Parliament accept that there will continue to be a convention that the consent of the Scottish Parliament will normally be required if a UK Bill proposed to alter the definition of devolved competence and there is no suggestion that the Scottish Parliament need to amend Rule 9B.1 of its Standing Orders which requires an LCM to be made in that case.
There is, however, no clear acceptance by the UK Government that they are bound by such a convention but, politically, it would be very difficult for them to deny it in these circumstances.
Is section 2 justiciable?
Section 2 has also created uncertainty as to whether, by putting the Sewel convention into statute, it has changed its nature from something which was a non-justiciable convention into a legal or statutory rule which could come before the courts to interpret and enforce.
In the House of Lords, it was pointed out that the courts might be called upon to interpret what was meant by "normally" and "devolved matters" and there might even be a judicial challenge to the validity of an UK Act which is alleged to have been enacted without the consent of the Scottish Parliament as required by that section. Particular concern was expressed over whether section 2 might be read as a restriction on the sovereignty of the UK Parliament and whether it might permit the legislative powers of the UK Parliament to be subject to judicial scrutiny.
The Advocate General took the view that any amendments to clarify the effect of section 2, or to provide that it should not be questioned in any court of law, were unnecessary because that section did not alter the meaning or the effect of the Sewel convention. In particular, it did not have the effect of turning the Sewel convention into a legal rule.
He acknowledged that "if you express the convention in statutory terms, it ceases to be a convention" but argued that section 2 was merely:
"a political expression of the convention in statutory form. That is why the term "normally" appears within Clause 2. It makes it clear that this is not a justiciable issue"
He expanded this point at Third Reading when he stated -
"Of course, we are not seeking, and nor are we able, to impose a restriction on parliamentary sovereignty, and it has also been made clear in discussion that the word [normally] is suitable for indicating how a discretion will be exercised. This clause is clearly intended to indicate that the discretion of Parliament to legislate for devolved matters will continue exactly as before and that it is not intended to subject that discretion to judicial control. I would add that the words "it is recognised" that appear in Clause 2 also reflect the continued sovereignty of the United Kingdom Parliament and that it is for Parliament to determine when a circumstance may be considered not normal. This is not a matter that the courts could meaningfully engage with."
It is rather difficult to understand the reasons which the Advocate General gave for the view which he took. The Advocate General might have argued, along with Mark Elliott, that all that section 2 did was to give statutory recognition to the fact that there was such a convention or to enshrine "the convention in statute while leaving the convention as a convention" However, he accepted that, by expressing the Sewel convention in statute, it ceased to be a convention. This then leaves its interpretation, and the question whether and how it can be enforced, to be decided by a court in the same way as in the case of any other statutory provision.
The view taken by the UK Government does not, therefore, preclude the possibility of a judicial challenge being made against the validity of a UK Act on the grounds that it was enacted without the consent of the Scottish Parliament as required by section 2. Indeed, as was pointed out by Lord McCluskey, the statement made by the Advocate General at Third Reading appears to have been intended to be read as a Pepper v Hart  statement which presupposes that it will be invoked to assist the interpretation of section 2 in a court of law in the event of any ambiguity in that section.
It may be thought that the courts would be likely to agree with the Advocate General that the language used in section 2 would impliedly indicate that it was never intended to be justiciable, that there was nothing in it which would prevent the UK Parliament from legislating on devolved matters and that it was only intended to have political effect.
Nevertheless, Lord Hope has expressly acknowledged that
"[t]he question whether the principle of the sovereignty of the United Kingdom Parliament is absolute or may be subject to limitations is still under discussion."
It is, therefore, likely that the courts will be presented with an argument that section 2 represents an important constitutional principle in a constitutional statute and that this is an exceptional case where they should be prepared to limit the sovereignty of the UK Parliament and enforce the "statutory embodiment of Parliamentary self-restraint" which section 2 represents by invalidating, in an appropriate case, a UK Act on the grounds that it breached that section.
It is doubted whether the courts would, at present, be prepared to go so far without a clear provision to this effect and that they are therefore likely to take the view that any sanction for breach of that section would be purely political.
The way in which the UK Government has put the Sewel convention on a statutory footing in section 2 has created two major uncertainties, one political and the other judicial, which could give rise to future constitutional conflict.
As section 2 only recognises the actual words used by Lord Sewel as the Sewel convention, it is uncertain as to what effect, if any, it has upon the other part of what was previously understood to be the Sewel convention – the requirement for a UK Bill which alters the definition of devolved competence to normally obtain the consent of the Scottish Parliament. This post suggests that there would still be a convention to this effect even although not part of the Sewel convention as described in section 2. It is thought that the Scottish Government and Parliament will clearly work on that assumption but until the UK Government and Parliament clearly accept it, there will continue to be uncertainty and the potential for political conflict.
As section 2 does not provide expressly that it cannot be questioned in any court of law, the question whether it is justiciable will remain uncertain until the courts determine whether, and to what extent, they will seek to interpret and enforce that section and thus subject the legislative power of the UK Parliament to judicial scrutiny. It is thought that any sanction for breach of that section will be purely political but it would be controversial.
As Lord Wallace of Tankerness stated –
"In conclusion, it is very regrettable that the Government have made no attempt whatever to move on these issues, despite some very compelling arguments. These are serious matters that are ripe for some constitutional conflict. If that happens, the Government have brought that upon themselves."
Iain Jamieson is a retired UK and Scottish Government lawyer. He headed a small team of lawyers who instructed the drafting of the Scotland Act 1998.
 https://www.smith-commission.scot/smith-commission-report/, paragraph 22
 White Paper: Scotland in the United Kingdom: An enduring settlement January 2015, Annex. One of the principal bodies which repeatedly expressed these concerns to the UK Government and to MSPs and members of the UK Parliament was the Law Society of Scotland.
 HL Deb 21 Jul 1998 Vol 592 c 791
 The use of the expression "devolved competence" in this article should not be confused with the definition of that expression in section 54 of the Scotland Act 1998 which is defined only in relation to functions.
 Scotland Act 1998,ss 30, 63 and Sch 7
 See, for example, the written evidence submitted by the UK Government to the Scottish Parliament Procedures Committee (7th report of 2005, The Sewel Convention, SP Paper 428, Annex C paras 4-5.
 This is now contained in Rule 9B.1 of the Standing Orders of the Scottish Parliament 4th Edition, 9th Revision (30 October 2015).
 LCM(S4)37.2 Session 4 (2016)
 See, in particular, Devolution (Further Powers) Committee 3 Report (2015) Session 4 Interim Report on the New Powers for Scotland paragraphs 55 and 56 dated 14 May 2015 and 3 Report (2016) Session 4 Final Report on the New Powers for Scotland paragraphs 35-50 and the evidence submitted to that Committee by persons and bodies.
 HL Deb 24 February 2016 c305-306
 The heading to paragraph 22 refers to “Scottish Parliament consent to UK Parliament making law in devolved areas”.
 http://www.gov.scot/Publications/1999/10/MofU paragraph 13 and https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/316157/MoU_between_the_UK_and_the_Devolved_Administrations.pdf paragraph 14
 HL Deb 8 December 2015 col 1507
 HL Deb 24 February 2016 c305-306
 HL Deb 24 Feb 2016 col 295
 HL Deb 21 March 2016 col 2073 per Lord Wallace of Tankerness.
 The Scottish Government suggested such an express provision in their Alternative Clauses attached to its Response dated 7 June 2015 to the Interim Report from the Devolution (Further Powers) Committee on the Smith Commission and the UK Government’s Proposals
 Scotland Act 1998, section 29(2)(c) and Schedule 4, paragraph 4
 See the Scottish Government’s Supplementary LCM - LCM(S4)37.2 Session 4 (2016)
 White Paper: Scotland in the United Kingdom: An enduring settlement January 2015 paragraph 1.2.2
 HC 15 June 2015 col. 107
 HL Deb 21 March 2016 col 2073
 Jennings I, (1959) Cabinet Government (3rd Ed) Cambridge University Press
 See HL Third Reading – HL Deb 21 March 2016 col 2073
 Oral evidence before Devolution (Further Powers) Committee 3 September 2015.
 See HL Committee Stage – HL Deb 8 Dec 2015 col 1487-1509 and HL Report Stage – HL Deb 24 February 2016 col 287-310
 HL Committee Stage – HL Deb 8 Dec 2015 col 1502 per the Advocate General, Lord Keen of Elie QC
 HL Third Reading – HL Deb 21 March 2016 cols 2070 and 2071
 Mark Elliott: The Draft Scotland Bill and the sovereignty of the UK Parliament, Public Law for Everyone Blog
 HL Third Reading – HL Deb 21 March 2016 col 2072
 Pepper v Hart  3 WLR 1032, 1 All ER 42 HL(E)
 AXA General Insurance v Lord Advocate 2011 UKSC 46 para 50
 BH v Lord Advocate  UKSC 24, per Lord Hope at para 30
 K Campbell, "The draft Scotland Bill and limits in constitutional statutes" U.K. Const. L. Blog (30th Jan 2015)
 HL Third Reading – HL Deb 21 March 2016 col 2074