One interesting finding in Miller is that it appears to recognise the Sewel Convention as a new form of constitutional convention; one that is legislatively entrenched but remains a convention rather than becoming a legal rule.

This aspect of the Court’s judgment raises more questions than it answers. It would have been helpful for them to consider the nature and significance of conventions as constitutional norms that are neither political practice nor legal rule. In respect of the Sewel Convention they arguably should have set out the effect of legislative entrenchment, if any. Furthermore it remains unclear whether the Convention is a “constitutional requirement” for the purposes of Art. 50(1) of the Treaty on European Union.

However, I want to focus here on the narrower issue of the Courts reasoning in determining that the Sewel Convention has not been converted into a legal rule, and particularly the claim that their judgment was based on a ‘problematic assumption’ regarding Parliamentary intent.

Although many important questions remained unanswered, Miller authoritatively settled the legal effect of s.2 of the Scotland Act 2016. The Court found that the Sewel Convention has not become a legal rule despite being embodied in statute, reasoning that both the “nature of the content” and the wording of s.2 indicate that Parliament was “not seeking to convert the Sewel Convention into a rule which can be interpreted, let alone enforced, by the courts” [148]. Instead it must be interpreted as “recognising the convention for what it is, namely a political convention”.

In effect, s.2 is legislation that does not change the law; it is declaratory, articulating a commitment rather than creating a binding legal norm (Feldman). However, the Court is regrettably silent on what a “political convention” actually is, and the precise nature of the commitment contained in s.2.

While I believe that this conclusion is defensible on all counts I focus here on Velasco and Crummey’s claim that the Court assumed Parliament intended not to create a legal rule. It would certainly have been preferable had the court expanded upon its reasoning, but it is wrong to think the Court assumed that Parliament intended that s.2 of the Scotland Act 2016 should not have legal effect. Rather they concluded it, on the basis of sound reasons and the arguments put before them.

The Court could perhaps have acknowledged their starting point as being the presumption that legislation has legal effect. However, they should be read as proceeding from this premise despite this omission, but nevertheless deciding that the content and context of the legislation provide sufficient reasons to displace the presumption.

Although brief, the Court’s references to the wording of the statute support this reading. The words “it is recognised” demonstrate Parliament’s intent to acknowledge a pre-existing state of affairs rather than to create new law. Furthermore, s.2 replicates the non-statutory terms originally used to describe the Convention. The court reasonably took the view that had Parliament intended to create a legal rule s.2 would be drafted differently.

The statutory context was also thought to be relevant; s.1  is designed to signify Parliament’s “commitment” to the devolution settlement, and the court reasoned that this pointed towards the purpose of s.2 similarly being “to entrench it as a convention” [149]. This view is bolstered by the fact that s.2 is entitled “The Sewel Convention”, evidencing the intent that it remain a convention.

The Court’s conclusion is therefore firmly based on statutory interpretation not assumption. However, there are several broader questions they should have addressed regarding constitutional conventions more generally, and this seemingly new form of legislatively entrenched convention in particular.

Joe Atkinson is a Ph.D. Candidate and Teaching Fellow at University College London

(Suggested citation: J. Atkinson, ‘Parliamentary Intent and the Sewel Convention as a Legislatively Entrenched Political Convention’, U.K. Const. L. Blog (10th Feb 2017) (available at https://ukconstitutionallaw.org/))