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On 22 January, and within the timetable dictated by Gordon Brown, the UK Government’s proposals for ‘an enduring settlement’ between Scotland and the rest of the UK appeared in a command paper containing a draft Scotland Bill. While the political argument about further devolution to Scotland appears likely to focus on the extent of devolution of social security powers, the constitutional importance of the proposals lie elsewhere in the draft ‘Scotland clauses’. This post offers preliminary thoughts on the proposed treatment of the Scottish Parliament, Scottish Government and the Sewel Convention – reflecting on Mark Elliott’s provocative analysis – and suggesting that the proposals may yet alter the premise of (UK) Parliamentary legislative supremacy.
The ‘Scotland clauses’
In response to what was the first pillar of the Smith Commission’s report (“providing a durable but responsive constitutional settlement for the governance of Scotland”), the draft clauses propose that the Scotland Act 1998 be amended to state the following fundamentals about the devolved institutions:
Section 1(1A) “A Scottish Parliament is recognised as a permanent part of the United Kingdom’s constitutional arrangements.”
Section 44 “(1) There shall be a Scottish Government.
(1A) A Scottish Government is recognised as a permanent part of the United Kingdom’s constitutional arrangements.”
Both the Scottish Government and the Scottish Parliament are, of course, existing bodies, so that this must amount to an alteration in their constitutional character, the precise nature of which is explored below.
Enactment of the Sewel Convention in a statutory form was also a recommendation of the Smith Commission, and is provided for by amendment to section 28 of the Scotland Act 1998, which is about Acts of the Scottish Parliament, by inserting immediately after the reservation of UK legislative competence “to make laws for Scotland” in section 28(7), the following:
“(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.”
Parliamentary supremacy and constitutional statutes
In each of these proposed provisions, the language used is striking and it is surely plain that their legal meaning is more nuanced than the ordinary use of the language would suggest. We are, I suggest, at the boundary of the legislative supremacy of (the UK) Parliament. In this I differ from Mark Elliott in his post about the Scotland Bill mentioned above. Just as we presume that the UK Parliament enjoys legislative supremacy, so we presume its legislative output to have – and to be intended to have – legal effects. That is surely the consequence of a rule of recognition that whatever the Queen-in-Parliament enacts is law, whether or not a constitutional statute. If that is correct, the proposed amendments must be intended to have legal effects. It may be correct to say that, if passed, these provisions would not provide warrant for interfering in the Parliamentary process through the courts – which is in any event well-established by the Bill of Rights 1688 – but that is another matter.
Elliott is surely correct that the effect of the proposed amendments is political in the first instance, in that if enacted, there would be a tangible obstacle to repeal or to legislation which was proposed in a way which would cut across the Sewel convention. However, it seems to me that these provisions go further. Judicial recognition of constitutional statutes since Thoburn v Sunderland City Council  EWHC 195(admin)  QB 151 has been cautious, but has been affirmed by the Supreme Court, and specifically in the context of devolution: BH v Lord Advocate  UKSC 24; 2012 SC(UKSC) 308, per Lord Hope para 30. Likewise, again in devolution case-law before the Supreme Court, Lord Hope expressly left open the question of whether the supremacy of the UK Parliament is absolute or may be subject to limitation in exceptional circumstances: AXA General Insurance v Lord Advocate  UKSC 46; 2012 SC(UKSC) 122, paras 50 & 51.
Thus there are limitations which are political on interference with the Scottish Parliament’s status and with legislation subject to the Sewel convention, and there are limitations which are based not only on the political fact of the ‘settled will’ of the Scottish people, but also on the explicit limits in these draft clauses and the fact that the Supreme Court has even entertained the notion that Parliamentary supremacy may no longer be absolute. There are constitutional precedents from another age, thus by the Statute of Westminster 1931, the Imperial Parliament undertook not to legislate for what were then the self-governing Dominions of the British Empire without the consent of the parliaments of those Dominions. By that expedient was self-rule and, ultimately, independence facilitated. Of course Scotland is not an overseas Dominion, but an integral part of the UK (as indeed are the other devolved administrations). Arguably, that makes the statutory embodiment of Parliamentary self-restraint all the more forceful.
Consideration of limitations on Parliamentary supremacy has thus far mainly been cast in terms of the effect of EU law, or on the character of the Human Rights Act. While one can point to features of the enactment of both which are intended to preserve the notion of Parliamentary supremacy, it is strongly arguable that the current state of devolution takes the issue in a different direction. It would, for example, have been credible for enactment of the Sewel convention to have been hedged by a certification requirement indicating that the Scottish Parliament had – or had not – consented to a proposed UK measure. Such certification finds precedent in for example section 19(1)(a) of the Human Rights Act 1998 which provides for the possibility of legislating in the face of a ministerial certificate of incompatibility. Likewise, manner and form limits on amendment are well known (indeed they are used in draft section 30A which requires a super-majority in the Scottish Parliament for provisions altering the constitution and franchise for that body), and yet have not been employed in draft sections 1(1A) and 44(1A).
As a matter of legislative intent, in the forms used, as much as the alternatives foregone, there must be meaning. Taking the Supreme Court case-law together with the ‘Scotland clauses’, I suggest that a definite and entirely domestic boundary of Parliamentary supremacy is emerging. That is the meaning and intent of these clauses of the Scotland Bill.
Kenneth Campbell QC is an Advocate at Arnot Manderson Advocates, Edinburgh, a Barrister at Lamb Building, London and doctoral researcher at Edinburgh University Law School.
(Suggested citation: K. Campbell, ‘The draft Scotland Bill and limits in constitutional statutes’ U.K. Const. L. Blog (30th Jan 2015) (available at: http://ukconstitutionallaw.org)).