Constitutional conventions are, the Supreme Court has confirmed, just that: conventions. The courts are “neither the parents nor the guardians” of such conventions; “merely observers” (para.146). The Sewel Convention “has an important role in facilitating harmonious relationships” between Westminster and the devolved legislatures but it is not for the court to “police” its operation (para.151). Embodying the convention in statute apparently does not turn it into law; it simply recognises it as “effectively” a permanent part of the devolution settlement (para.148). Given the devolution legislation was designed to provide a settlement that was “coherent, stable and workable” (Imperial Tobacco  UKSC 61 at para.14) there ought not to be any great need for a policeman. Immediate fallout from the judgment, however, tends to suggest that the Sewel Convention is doing anything but facilitating such a relationship: the First Minister’s commitment to a vote at Holyrood in any event, and with it also being said that the case for another independence referendum is becoming “ever clearer”, “stable” is certainly not an obvious descriptor of the current devolution settlement (let alone “coherent” or “workable”).
The current controversy surrounding the Sewel Convention does not detract from the sound rationale for its existence and that is reflected in its hitherto unqualified acceptance in both London and Edinburgh. If policing it is to be left to the politicians (as the general orthodoxy would have suggested even before the Supreme Court’s decision), then the current dispute suggests that the convention should be armed with some other political teeth. For example, just as a Minister must certify that a Bill is compatible with Convention rights when introduced, a Minister could be required to certify whether a Bill includes matters on which consent should be sought from a devolved institution. That may, as here, be controversial. If the Minister were to answer that question “yes”, the Speaker could then be required to seek that consent unless the Minister certified that it should not be sought. Such a certification would no doubt call for an explanation. Such a procedure could be introduced by revising the Standing Orders. Ordinarily obtaining such consent would be entirely uncontroversial but where the UK Government wished to proceed without the consent of the devolved legislature (such as here, where consent would be unlikely to be given), the Government would be forced to face the political price of that decision (and to explain it) at the earliest stage.
There may be other solutions. However, accepting the Sewel Convention as an important element of the devolution settlement, designed to ensure a harmonious relationship within a stable and workable constitutional settlement, there seems now to be a case to have some structure by which its operation is policed. The court may simply be an observer, watching on as the children fight. But something should be in place to try and avoid, or at least minimise, such fights in the future if we are to maintain anything that resembles a harmonious, coherent, stable and workable devolution settlement.
Paul Reid is an advocate with Ampersand Stable and member of the Edinburgh Centre for Constitutional Law
(Suggested citation: P. Reid, ‘Time to Give the Sewel Convention Some (Political) Bite?’, U.K. Const. L. Blog (26th Jan 2017) (available at https://ukconstitutionallaw.org/))