Sewel Convection

Ever since its adoption, the Sewel Convection has been applied for more than 145 times in solving issues within the Scottish parliament with few controversies if any (Joe, 2017). There was never a big legal case that used the convection and hence when the question, about it, arose in 2017; there was no reference to any argument (Joe, 2017). The issue of Sewel convection and its applicability had to be discussed in the Miller case (Joe, 2017). The judgment stated that an Act of Parliament was necessary if article 50 of TEU was to be triggered, as for devolved legislation; the court declared that the issue was under-reserved matters and hence no consent of devolved legislation was needed (Aileen, 2018).

The laws and the governing convections were formed with the EU rules in mind, upon, Brexit, the devolved institution will have to be affected (Aileen, 2018). This brought up the question of Sewel convection which generally provides that the Westminster cannot legislate on matters concerning devolved institution without the consent of the respective assembly. The following was stated during the proceedings

“Judges ... are neither the parents nor the guardians of political conventions; they are merely observers. As such, they can recognise the operation of a political convention in the context of deciding a legal question [...], but they cannot give legal rulings on its operation or scope, because those matters are determined within the political world.” (R (Miller) v Secretary of State for Exiting the European Union)

The judges’ statement raised more questions about the convections and especially the Sewel Convection. By stating this, the judges did not necessarily clear whether there UK Government, by the virtual of the convection, was required to have devolved consent. It clear that the issue of Brexit will shake many domestic laws but the concern here is the constitutional status of Sewel Convection.

The statement meant that the convection was not a legal rule that could be used in a court to make a decision, but it was only ‘political convection’ (Aileen, 2018). This established that the convection only applies in normal circumstance and only enhance the commitment of legislative bodies. It is a political entity whose scope and operation is not to the judges but the UK Government and the parliaments. This means that it can only be referred to by the parliament and the courts only ‘recognise’ its operation on political bases (Tom, 2017). In their deliberations, the judges stated that they do not undermine the constitutional convection, but their application was not under the inherent merit.

By not recognising the convection as a legal rule, the question of what was the main intent of the convection remains to solved. It was reasoned that the wording means that the convection was not a rule which could be interpreted or enforced in the judicial systems (Tom, 2017). The law is not dependent on the provision of the convection since it does not form a binding legal standard but just an obligation of the parliament. From this case, it now seems like the convection was not intended to have any legal effect but was just meant to be convection which ensures discipline in policymaking and proceedings of the parliament and not the courts. The court, therefore, argued on the basis of statutory interpretation but not assumptions.

Sewel Convection is now hemmed in with presumptions and arguments concerning its scope and hence exposing a fundamental flaw (Tom, 2017). The ruling has enhanced disapproval and critics on the judicial applicability of convection. By failing to recognise the convection as a legal rule, the court dismissed the existent of ‘divided sovereignty’ and hence limited it and its meaning in accordance with devolved power (Tom, 2017). Before the case, many bodies and especially the parliaments recognised the convection to the extent of having ‘remit to judiciary', and now all of that has been stripped of the convection making it stand out as just a political regulation in the statute (Tom, 2017).

In the political field, the convection has not got a statutory meaning. The Supreme court stated that the convection was recognised as political and hence it still can be used in a court of law despite the lack of legal content (Joe, 2017). Following the ruling, the BBC did an interview with Scottish Secretary in Westminister and on parliament concerning the use of Sewel Convection; the parliament took the position of the convection established by the Supreme Court in a debate on the Great Repeal Bill (BBC, 2017). It was anticipated that if the bill passed, the Brexit would be a matter of legislative consent.

In conclusion, the Sewel Convection has been stable for more than 15 years and has been used to enhance respect and agreement between the Westminster and the devolved government. The fact that Brexit will affect the devolved constitutions, the applicability of Sewel Convection in the case was speculated to be guaranteed. The court’s ruling, however, has made the meaning of the convection to change in a whole new level. The constitutional status of Sewel Convection is still being hit by political and legal tides.

References

Aileen, M., 2018. Constitutional Change and Territorial Consent: The Miller Case and the Sewel Convention in Elliott, Williams and Young (eds), The UK Constitution After Miller: Brexit and Beyond.

BBC 2017. What's a Sewel Convention and why did it feature in the Brexit court ruling? Available in https://www.bbc.com/news/uk-scotland-scotland-politics-38731693

Joe, A.,2017. Parliamentary Intent and the Sewel Convention as a Legislatively Entrenched Political Convention. Available in https://ukconstitutionallaw.org/2017/02/10/joe-atkinson-parliamentary-intent-and-the-sewel-convention-as-a-legislatively-entrenched-political-convention/

R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5

Tom, M., 2017.The Brexit Case and Constitutional Conventions. 21 Edinburgh Law Review 442.