The holding of the majority in Miller that section 28(8) of the Scotland Act 1998, which  echoes the wording of the Sewel Convention, creates no legal obligation on the UK Parliament to seek the consent of the Scottish Parliament before passing legislation to leave the European Union was remarkably underdeveloped in comparison with its commendably clear treatment of the main questions concerning the prerogative power.

The majority held that section 28(8) was not a legal rule, but merely the acknowledgment of a convention, and so compliance with section 28(8) by the UK government was not a matter for the Court [148-149]. Paragraph 148 is the crucial paragraph:

As the Advocate General submitted, by such provisions, the UK Parliament is not seeking to convert the Sewel Convention into a rule which can be interpreted, let alone enforced, by the courts; rather, it is recognising the convention for what it is, namely a political convention, and is effectively declaring that it is a permanent feature of the relevant devolution settlement. That follows from the nature of the content, and is acknowledged by the words (“it is recognised” and “will not normally”), of the relevant subsection. We would not have expected UK Parliament to have used words if it were seeking to convert a convention into a legal rule justiciable by the courts [148].

The Court makes several problematic assumptions here:

(i) That a political convention does not cease being a political convention even if it is recognised in a validly-enacted statute;

(ii) That (i) obtains because of the nature of the content of a political convention, regardless of formal enactment procedures;

(iii) That Parliament did not intend that a legislative provision should create a justiciable legal rule; and

(iv) That the words ‘it is recognised’ and ‘will not normally’ support (iii).

These raise several difficulties. First, it is generally the absence of formal codification procedures – which are present here – that is thought to distinguish legal rules from political conventions. Secondly, it is unclear what it is about the ‘nature of the content’ of section 28(8) that makes it a political convention. The majority did not develop this conclusion. Thirdly, it is odd that the Court began from the presumption that Parliament did not intend to create a legal rule. Rather, the starting-point should have been that any validly enacted legislative provision is intended by Parliament to create a legal rule, unless the statute clearly and expressly states otherwise. Finally, it is unclear how the words ‘it is recognised’ and ‘will not normally’ support the conclusion that this provision was intended to remain a political convention [148].

Questions around the nature of political conventions recognised in statute merit more careful consideration than the court offered here. Such questions directly impact wider debates around fundamental constitutional principles, such as the relationship between parliamentary sovereignty and the rule of law. It is regrettable that the Court did not take the opportunity to contribute to this ongoing discussion.

Eugenio Velasco is a Ph.D. Candidate and Teaching Fellow in Public Law at University College London.

Conor Crummey is a Ph.D. Candidate at University College London.

(Suggested citation: E. Velasco and C. Crummey, ‘The Reading of Section 28(8) of the Scotland Act 1998 as a Political Convention in Miller‘, U.K. Const. L. Blog (3rd Feb 2017) (available at https://ukconstitutionallaw.org/))