Tag Archives: Sewel Convention

Aileen McHarg: The Leveson Report, the Royal Charter and the Scottish Parliament: A Reply to Jamieson

aileenIain Jamieson’s earlier post argues that the ability of the Scottish Parliament to implement its own model of press regulation in response to the Leveson Report has effectively been ousted by the UK government’s proposal to establish a UK-wide system of press regulation by Royal Charter.  I would take issue with two aspects of his analysis.

First, Jamieson claims that, since the provisions of the proposed Royal Charter will be entrenched by clause 92 of the Enterprise and Regulatory Reform Bill, which applies to Scotland, the Scottish Parliament cannot legislate to amend the Royal Charter or provide that it should not apply to Scotland.  Clause 92 provides that the Charter cannot be amended except in accordance with the procedure laid out in the Charter itself (two thirds majority of each House).  As Jacob Rowbottom has argued on this blog, the degree of entrenchment actually provided by this device is limited because clause 92 can itself be repealed or amended by subsequent UK legislation with no special majority.

To argue that the Scottish Parliament will nevertheless bound be by clause 92 therefore requires the further claim that, because clause 92 (however indirectly) ‘occupies the field’ in relation to press regulation, the Scotland Act 1998 will be impliedly repealed insofar as it devolves power to legislate on that issue to the Scottish Parliament.  There are at least three ways of responding to this implied repeal argument, all of which lead to the conclusion that the Scottish Parliament will not in fact be bound by clause 92.

The first, and most speculative, response would be to rely on Laws LJ’s obiter dictum in Thoburn to the effect that, since the Scotland Act is a constitutional statute, it cannot be impliedly repealed.  This would mean that the only way in which the Scottish Parliament’s legislative competence can be reduced would be through express amendment via primary legislation or a section 30 order, either of which would require (by convention, in the former case, and by statute, in the latter) the consent of the Scottish Parliament.

It is, however, unnecessary to adopt such a heterodox approach.  A second, more conventional, approach would be to accept that the Scotland Act may be impliedly repealed, but to argue, as Barber and Young have done (‘The Rise of Prospective Henry VIII Clauses and Their Implications for Sovereignty’ [2003] PL 112, pp 112-6), that a statute can only be impliedly repealed by a subsequent statute on the same subject matter, not merely by a later conflicting statutory norm.  Since the Enterprise and Regulatory Reform Bill does not deal with the same subject matter as the Scotland Act (the division between reserved and devolved legislative competences), it cannot impliedly repeal the transfer of power to the Scottish Parliament effected by the Scotland Act even if a norm contained within it or flowing from it for the time being ‘occupies the field’ of a particular devolved competence.  It would, on this analysis, still be open to the Scottish Parliament to assert its legislative competence in relation to press regulation and repeal (expressly or impliedly) the provisions contained in clause 92.

A third, even more conventional approach, would lead to the same conclusion.  This would be to accept that a statutory provision can be impliedly repealed by a later inconsistent statutory norm, even if the subject matter of the two statutes is not identical.  This view, however, requires a more nuanced approach to when such a conflict arises.  In relation to the Scotland Act 1998, for instance, it may be argued that the transfer of legislative competence in devolved areas to the Scottish Parliament is not inconsistent with (and therefore not impliedly repealed by) later UK legislation on a devolved matter because the Scotland Act itself, in s.28(7) expressly envisages that such a situation may occur.  This approach suggests that the Scotland Act, properly understood, involves a sharing of legislative power between the UK and Scottish Parliaments, and that the latest norm on a particular devolved matter will prevail irrespective of the Parliament from which it emanates.  This analysis would appear to be the one which best fits the post-devolution legislative practice, where the Scottish Parliament has regularly consented to allow the UK Parliament to legislate on its behalf, but has on some occasions subsequently amended such legislation.

The second point which arises out of Jamieson’s blog concerns whether the UK government is legally or constitutionally entitled to impose a system of press regulation on Scotland via the royal prerogative.  The constitutional position, as set out in written answer by Tony Blair on 30 June 1999,  is that where the exercise of prerogative powers relates to a matter within devolved competence, it is for the First Minister rather than Ministers of the Crown to advise the Queen.  The situation is slightly different in relation to business of the Privy Council, such as grant or amendment of a Royal Charter, because it is the Privy Council as a whole rather than a particular minister which advises the Queen.  Nevertheless, the written answer states that:

the advice in relation to a particular matter which the Privy Council offers to Her Majesty is in many instances based, either by virtue of statutory provision but more often by convention, on advice or information provided to the Privy Council by one or more particular Ministers of the Crown as the Privy Counsellor with the principal interest in that matter.’

It goes on to state that, in areas of devolved competence, the Privy Counsellor with the principal interest would be the First Minister (who is a member of the Privy Council).

It is not clear from these provisions whether the Privy Council as a whole is entitled to depart from the advice of the principal minister.  Where there is a conflict of views between members of the same administration it may perhaps be argued that the majority view should prevail.  However, in the case of a conflict between the view of the First Minister and other Privy Counsellors representing the UK government, there is a strong case (for the reasons that Jamieson outlines) for saying that it should not.

Given that the question of who should advise the monarch on the exercise of the royal prerogative is a matter of convention rather than law, it may be difficult to argue that the UK government would be acting illegally if the Privy Council were to recommend the adoption of a system of press regulation applying throughout the UK in the face of Scottish opposition.  As a matter of constitutional morality, though, it is hard to avoid the conclusion that to treat the design of a new UK-wide system of press regulation as a matter for negotiation purely between the main parties in the UK Parliament is constitutionally improper.

Contrary to Jamieson, therefore, I would argue that just because the UK government has chosen a regulatory vehicle which manages to avoid the application of the Sewel Convention, it does not thereby follow that the Scottish Parliament is compelled to accept it or deprived of its competence to legislate for a different system of press regulation in Scotland.

(I am grateful to Chris Himsworth for his very helpful comments on this note and particularly for alerting me to the Blair written answer.)

Aileen McHarg is Professor of Public Law at the  University of Strathclyde.

 Suggested citation: A. McHarg, ‘The Leveson Report, the Royal Charter and the Scottish Parliament: A Reply to Jamieson’ UK Const. L. Blog (21st March 2013) (available at http://ukconstitutionallaw.org)



Filed under Devolution, Scotland

Iain Jamieson: The Leveson Report, the Royal Charter and the Scottish Parliament

The Scottish Parliament can legislate to regulate the press in Scotland. This is because this matter  is not made a reserved matter. In principle, therefore, it would be competent for the Scottish Parliament to legislate to give effect to the Leveson Report in whatever way they thought fit.

It was for this reason that the Scottish Government appointed an Expert Group under the chairmanship of  Lord McCluskey  to consider what was the most appropriate way of giving effect to that Report in Scotland. The Expert Group has now published their report but it has been met with an almost universal hostile reception by the press.

However, the Expert Group Report may, to a large extent, now be irrelevant.  This is as a  result of the way in which the UK Government is proposing to give effect to the  main recommendations in Leveson regarding the setting up of the Recognition Panel  to recognise the independent regulatory body for the press.   The UK Government propose to do so by means of a Royal Charter. This will be contained in an Order in Council made under the Royal Prerogative. There is nothing in the Royal Charter to indicate that it is not intended to extend to Scotland. In the absence of any such indication, it will extend to Scotland.

By implementing the Leveson Report in this way, the UK Government has, in effect, bypassed the need to obtain the consent of the Scottish Parliament to the terms of the Royal Charter in so far as they extend to Scotland.. This is because the consent of the Scottish Parliament is only required, under the Sewel Convention, to approve any Bill proposed in the UK Parliament which deals with devolved matters or affects the legislative competence of the Parliament. Neither the Royal Charter nor the Order in Council will constitute such a Bill. The Scottish Parliament will, therefore, have  been deprived of having any say in the provisions of that Royal Charter.

Given the terms of the Royal Charter, it would not appear that the Scottish Parliament could provide for the press in Scotland to be compelled to join a regulatory scheme, as the McCluskey Report proposed.  Accordingly, it would seem that all that would be left for the Scottish Parliament to do is to provide , as a matter of Scots law, for  similar incentives to encourage the press to join the new regulatory scheme as those made in clause 21A of the Crime and Courts Bill (as amended  at Third Reading in the Commons).

In certain circumstances, the UK Parliament can over-ride the prerogative and it is thought that the Scottish Parliament would also be able to do so within devolved matters.  It may be thought, therefore, that it would still be possible for the Scottish Parliament to legislate to amend the Royal Charter or to provide that it should not apply in Scotland.

However, this would not appear to be possible because the Royal Charter also provides that it cannot be amended, or the Recognition Panel dissolved, unless a draft of the proposed change has been laid before the UK Parliament and approved by a resolution of two thirds of the members of each House.  No mention is made of any need to obtain the consent of the Scottish Parliament, whether by simple majority or otherwise.

These provisions in the Royal Charter are entrenched by clause 92 of the Enterprise and Regulatory Reform Bill (as amended at HL Report) which provides-

“Where a body is established by Royal Charter after 1 March 2013 with functions relating to the carrying on of an industry, no recommendation may be made to Her Majesty in Council to amend the body’s Charter, or dissolve the body, unless any requirement included in the Charter on the date it is granted for Parliament to approve the amendment or dissolution have been met.”

This clause extends to Scotland (see clause 97(8)). However, it may be doubted whether, given the very general terms of clause 92, it would trigger the need for a LCM (or Sewel motion) in the Scottish Parliament but, even if it did, the consent required would only relate to that provision and not to the terms of the Royal Charter itself.

The effect of all this is that the Scottish Parliament has, in effect, been  deprived of its power to make substantive provision for the regulation of the press in Scotland. This has been done not by any of the recognised ways of amending the list of reserved matters in Schedule 5 to the Scotland Act 1998, such as by means of a section 30 order, but indirectly as a by-product of the UK Government deciding to use the Royal Prerogative to give effect to Leveson.

Suggested citation: I. Jamieson, ‘The Leveson Report, the Royal Charter and the Scottish Parliament’ UK Const. L. Blog (20th March 2013) (available at http://ukconstitutionallaw.org)


Filed under Scotland

Stephen Tierney: The Scotland Bill before the Scottish Parliament

The Scotland Bill, which intends to implement the Calman Committee report , is currently before the Scottish Parliament for consideration under the Sewel convention. It is being assessed by a specially convened Committee of the Parliament which is considering whether or not Holyrood should give another Legislative Consent Motion.

The Bill completed its Committee stage in the House of Commons on 15 March 2011 and its Report and third reading stages by 21 June. The engagement of the Scottish Parliament comes before the House of Lords addresses the Bill. In the Lords it will be possible to table further amendments, some of which may well result from the current Scottish parliamentary process.

The convention issue is an interesting one. The Sewel Convention of course that requires that any change to the devolved powers of the Scottish Parliament or the Scottish Government should ordinarily pass through Westminster only once the consent of the Scottish Parliament has been obtained. The first thing to note is that the Scottish Parliament’s Scotland Bill Committee is now in its second incarnation. The Bill was published on 30 November 2010 by the coalition Government. The Committee was first established on 7 December 2010 and considered the Bill during the term of the last Scottish Parliament when it was chaired by Labour’s Wendy Alexander. This committee reported in March 2011 and based on this report the Scottish Parliament then agreed to pass a ‘Legislative Consent Motion’, ‘supporting the general principles’ of the Bill but inviting the UK Government and the UK Parliament to consider amendments and proposals contained in the report of the Scotland Bill Committee. It also asked to see any amendments made to the Bill with a view to debating them in a further legislative consent motion before the Bill was passed for Royal Assent. This was interesting because it introduced the idea of a qualified LCM.

Following the May 2011 Scottish parliamentary election and the return of an overall SNP majority the committee was reconstituted with a very different composition and the new Committee is reconsidering the whole issue of whether or not to give another LCM. In his speech to the Scottish Parliament on 18 May 2011, the First Minister, Alex Salmond MSP, called for ‘improvements’ to the Bill. He specifically outlined six areas for further improvement: borrowing powers, corporation tax, the Crown Estate, excise duties, digital broadcasting and a stronger say in European policy. On 13 June 2011, the UK Government announced proposals to amend the Scotland Bill, and it is with a complex mix of the published Bill, plus additional provisions proposed both from Whitehall and the Scottish Government that the Committee is concerned.

The Committee is coming to the end of its deliberations and intends to report in December 2011. The main focus of public interest in the Bill is on tax and borrowing powers, but there are also a number of constitutional matters that lawyers might want to look out for.

Highlights include:

Clause 15 which will rename the Scottish Executive as the Scottish Government. This has become the commonly used term and the provision will formalise this change. The ‘Scottish Government’ was a title adopted by the Scottish Labour. The Bill accepts that the new usage has become so established that it needs to be recognised in law.

Clauses 4 and 5 will enable the Scottish Parliament to decide respectively on the number of deputy presiding officers and how to constitute the Scottish Parliament Corporate Body. These are intended to make the workings of the Parliament run more smoothly; as such they are uncontroversial.

Clause 6 proposes to amend Section 31(1) of the Scotland Act to extend the duty to anyone introducing a bill within the Scottish Parliament to certify that the bill is within competence. This duty presently only applies to ministers. In other words, a statement roughly equivalent to a s19 statement under the Human Rights Act will now be required even of backbench MSPs introducing a Bill into Holyrood.

Clause 7 aims to provide the  Secretary of State for Scotland with the power to refer only particular provisions within bills rather than the entire Bill (as present under section 33 of the Scotland Act 1998) to the Supreme Court prior to Royal Assent. This would allow the other provisions in the Bill to come into force.

Clause 10 will amend section 30 of the Scotland Act to allow changes to the catalogue of reserved matters in Schedules 4 and 5 by Order in Council as necessary or appropriate. In effect this will allow these powers to be changed temporarily. At the moment extensions of powers cannot be limited in time. This issue arose from the Somerville case which led to a speedy amendment of the Scotland Act to see off some of the possible consequences of that case.

Clause 16 again builds upon Somerville and the Convention Rights Proceedings (Amendment) (Scotland) Act 2009 passed subsequent to this. The idea is that there should be consistency between the time bar period for devolution issues under the Scotland Act and the time bar period under the Human Rights Act 1998.

Clause 23 proposes to extend further powers to UK Ministers to implement international obligations. It provides that a regulation made by UK Ministers, implementing an international obligation, can have effect throughout the UK, irrespective of whether or not it deals with matters which are within devolved competence.

Clause 17 is a recently introduced measure which will do two things. First it will amend section 57(3) of the 1998 Act so that acts or failures to act of the Lord Advocate in prosecuting any offence, or as head of the system of criminal prosecutions in Scotland, are not rendered ultra vires by virtue of section 57(2) of the 1998 Act. This is in line with the recommendations of various reviews of how the existing law has led to countless legal challenges against the Lord Advocate for any defects in the criminal justice system.

Second, Clause 17 addresses the important and controversial issue of appeals to the Supreme Court from the High Court of Justiciary, Scotland’s highest criminal court. Traditionally there has been no right of appeal in Scots criminal matters to the Judicial Committee of the House of Lords or the Supreme Court. The Scotland Act complicates this of course since ‘devolution issues’ arising even in criminal cases are able to go to the Supreme Court, as they were the JCPC. The Bill proposes to introduce a fairly wide ranging right of appeal. The Lord Advocate has responded on behalf of the Scottish Government with a more limited right of appeal based upon the McCluskey report which considered this matter; this seeks to confine appeals to constitutional issues and would require the ‘certification’ of the High Court of Justiciary that the matter is of ‘general public importance’.

We await to see if a compromise on this and other matters can be reached which will lead to the Committee, or at least a majority of its members, recommending that the Parliament pass a Legislative Consent Motion – even of a qualified nature.

Stephen Tierney is Professor of Constitutional Theory at the University of Edinburgh and constitutional adviser to the Scottish Parliament Committee on the Scotland Bill. 

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Filed under Devolution, Scotland, UK Parliament