Sewel: no "constitutional safeguard", just a "self-denying ordinance..."

By any reckoning, Richard Keen QC is an uncommonly political lawyer. Former Dean of the Faculty of Advocates, and now the UK government's chief adviser on Scots law, Ruth Davidson appointed him chairman of the Scottish Tories in 2013. While in office, he reportedly summoned the party's MSPs to his "small castle", and subjected them all to a dressing down for being useless. Some disgruntled parliamentarian, ungrateful for this advice, leaked the encounter to the media. This interlude seemed to do his political career no harm. When David Cameron secured his majority in 2015, and the Liberal Democrats were ejected from government, Keen took up Jim Wallace's vacant office of Advocate General for Scotland.

In that position, Keen appeared before the UK Supreme Court this morning, to speak to the devolved aspects of the ongoing Brexit case. We substantially knew what the Advocate General proposed to argue from his written argument, but the Justices afforded him an hour to expand on his points. We may hear from him again, in reply, after the Lord Advocate has made his submissions on behalf of the Scottish Government on Wednesday. 

Keen's message to the Justices was characteristically trenchant and forthright -- but you have to wonder whether it was politically wise. Keen's argument is essentially a simple one. Parliament is sovereign. Nothing in the devolution settlements changes that. Indeed, the Scotland Act specifically recognises that Westminster retains competence over foreign affairs, including EU negotiations. It also retains power to legislate concerning devolved matters. Parliament is sovereign. It can make or unmake any law: the Scotland Act is no exception.  

Where this gets controversial, however, is when we turn to the so-called "Sewel convention". Since 1998, Westminster has recognised that it will not legislate for devolved matters without the consent of Holyrood. What do we mean by devolved matters? Generally, this has been understood as (a) passing legislation which falls within Holyrood's powers, or (b) changing the legislative competence of Holyrood by adding or subtracting from its authority, by devolving more powers, or re-reserving powers which were once reserved. 

But this convention gave Holyrood very limited legal protection. In states with codified and entrenched constitutions, the central government does not have the power to abolish regional parliaments, or to intrude on their competencies. The courts would block any attempt to do so. Some people wondered: why should Scotland be any different? Shouldn't the permanence and privileges of Holyrood also receive some legal protection?

In the wake of the 2014 independence referendum, the Smith Commission report agreed that"the Scottish Parliament will be made permanent in UK legislation" and that the Sewel convention should be "put on a statutory footing". Both of these commitments were reflected in sections one and two of the 2016 Scotland Act.  But did these "constitutional protections" really make much difference? In the political domain, David Mundell and his colleagues made much of these concessions. The statutory recognition of Sewel and Holyrood's permanence were important, they said, meaningful.

That claim lies in ruins this afternoon, after Richard Keen's Supreme Court submissions. So what did he say? Characterising this statutory recognition of the convention as "a self-denying ordinance", Keen continued, it was only "a political restriction upon Parliament's ability to act, no more and no less than that" and in no sense any "qualification or inhibition upon parliamentary sovereignty."

This is all very well and good, you might well think, before 2016. From 1999 - 2016, Sewel was just a political convention. You didn't find it in any law. But surely the Scotland Act must make some kind of difference? Surely there was some point in including Sewel in the 2016 Act? If there wasn't, if the idea Westminster will not "normally legislate for devolved matters without consent" is just empty words, just hot political air, then why the devil did MPs do it? 

The same thought struck Lord Sumption during the hearing. "But it cannot be described as a purely political force once it is enacted in a statute?" he asked. "Do you submit its incorporation as an Act of Parliament makes no difference to its legal effect?" he wondered.

Richard Keen's answer was consistent with the orthodox logic of his submission - but it remains politically stark. Yes, he said. The statutory recognition of Sewel is of no legal significance whatever. "The correct legal position", he concluded, is that Westminster "is sovereign, and may legislate at any time on any matter."As Graeme Cowie observed in the comments at the end of my last blog, "anyone paying even the most superficial of attention knew sections 1 and 2 of the Scotland Act 2016 were weasel words."

That may be true of constitutional scholars like Graeme. But for ordinary folk who followed the passage of the Scotland Act through Westminster and Holyrood, who listened to David Mundell's defence of its provisions -- Richard Keen's uncompromising submissions today may come as something of an unwelcome surprise.

"A quintessential matter of political judgment for Westminster..."

Last Friday, the Lord Advocate published the Scottish Government's intervention in the ongoing Brexit litigation before the UK Supreme Court. James Wolffe QC weighed in behind the Divisional Court's judgment, arguing that the royal prerogative cannot lawfully be used to trigger Article 50. But Scotland's senior law officer also ranged beyond that. He points to the Sewel convention, arguing that if Westminster legislates to withdraw the UK from the European Union, the Scottish Parliament must be consulted. 

The Lord Advocate isn't arguing that Holyrood has a veto -- but that the UK constitution now expects MPs to canvas the view of MSPs before legislating on devolved matters. Modern understandings of the Sewel convention generally recognise that it has two limbs. Firstly, that Westminster ought to seek the consent of Holyrood before changing Scots law on issues falling within the Scottish Parliament's purview, like health, or education, or family law.  And secondly, that any changes to the powers of the Scottish Parliament itself ought to take account of MSPs' views. The same goes for any changes to the power of Scottish Ministers, whether enhancing or curtailing their legal authority.

This afternoon, the UK government have published their counterblast against the Lord Advocate's submissions (and parallel arguments, made by the law officers of the Northern Irish and Welsh administrations). You could only expect Richard Keen and his colleagues to resist James Wolffe's arguments, but as Jonathan Mitchell QC tweets this afternoon, the UK government's legal answers have a "strangely tetchy" tone, "supercilious and ill-tempered". Seasoned barrister Sir Paul Jenkins couldn't "recall a case where the government thought it wise to descend to such rudeness", which he describes as "unnecessary and inappropriate." Jo Maugham QC characterises the submissions as "fantastically" so.

In a nutshell, they are that devolution is irrelevant to the issues before the Court, that foreign affairs is reserved, and that ""the devolution legislation cannot add to the arguments" in the case "in any material way." But perhaps most eye-catching, are the UK government's observations on the need to seek consent from any of the devolved legislatures. "The Court is being invited ... to stray into areas of political judgment rather than legal adjudication." They argue the Supreme Court "should resist that invitation."

So how do they reach this conclusion? While recognising that the statutes establishing Edinburgh, Belfast and Cardiff assemblies are "very significant pieces of legislation", they contend that the Sewel convention is not justiciable - which is to say, unsuitable for judicial decision-making. It is, they say, a "legal irrelevance", just a "political convention", and not part of UK constitutional law. In support of this view, they cite Lord Reed -- one of the justices who will hear this case, In 2012, in the Imperial Tobacco case, Lord Reed described the convention as a “political restriction on Parliament’s ability to amend the Scotland Act unilaterally" -- not a legal restriction.

And as far as this goes, this is a perfectly orthodox account of the status of constitutional conventions in the UK. They have generally been regarded as "rules of constitutional morality", rather than rules of constitutional law, susceptible to enforcement by the court. But where the UK government's case hits a potential wrinkle is that Westminster chose in 2016 to inscribe this convention on the face of the Scotland Act. They simultaneously "recognised" the "permanence" of the Scottish Parliament. 

While Lord Reed was absolutely right in 2012, that the Sewel convention was only a political restriction Westminster had undertaken to abide by, this isn't straightforwardly the case in 2016. The UK government's submission - strikingly - has nothing whatever to say about this change, and the impact it might have on their arguments about the justiciability and enforceability of the convention. Back in 2014, Professor Mark Elliott tacked up this informative article about the different potential legal effects of these innovations. In its legal papers, the UK government body-swerves these implications altogether.

So does the statutory recognition of Sewel change anything? Maybe. Maybe not. As a number of us pointed out at the time, David Mundell formulated this statutory recognition in a consciously sleekit way. The new Scotland Act recognised only that "the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament." "Normally" isn't a word you encounter very often in statutes. "Must" and "may", certainly. But not "normally." 

UK lawyers, unsurprisingly, have hung up their wigs on these words. Referring to the Scotland Act, they suggest the convention "does not purport to prescribe an absolute rule." Its content is only that “Westminster would not normally legislate” And here is the kicker. They argue that:

"... whether circumstances are ‘normal’ is a quintessential matter of political judgment for the Westminster Parliament and not the courts. There are no judicial standards by which to measure such a question in the context of a political convention." 

You didn't hear this kind of reasoning - at least in public - when David Mundell was talking up the virtues of the new Act, invoking the idea of a "new parliament, new powers, and new partnerships."

For the UK government lawyers, we end with the orthodox Diceyan vision of the tyrannical patriarch, and the erratic father figure never needs to keep his word, or follow his own rules. Whatever forms of "legal recognition" or apparent constraints Westminster inscribes on its constitutional legislation, "the Westminster Parliament is sovereign and may legislate at any time on any matter ... any attempt to enforce the convention directly or indirectly would be a straightforward impingement on that sovereignty." 

Theresa May's legal counsellors may be resisting any attempt for parliament to take back control over Brexit, but they take Holyrood's subordination to Westminster for granted. For Richard Keen and his colleagues, power devolved is ultimately power retained, whatever political grace notes ministers write into the latest iteration of devolution, whatever our constitutional statutes anticipate and provide. And if the strident, haughty tone of this reply is anything to go by -- how very dare you argue otherwise. 

You can read the whole UK government submission here.

"Ane absolute power to Cass, Annull & Dissable -- Contrair to Law..."

Last night, the Lord Advocate James Wolffe QC published the Scottish Government's written intervention in the Article 50 litigation. The case is scheduled to be heard by all eleven of the UK Supreme Court's Justices between the 5th and 8th of December.  

It is, as you'd expect, a weighty legal document which you may not find instantly digestible. A quick scan throws up a range of old constitutional familiars: the Claim of Right Act 1689, the Act of Union, the Sewel convention -- and even our old friend MacCormick v Lord Advocate. But what does all this mean? When you boil it all down, what is the Scottish Government really arguing for in the Brexit hearing? 

In a nutshell, James Wolffe is pursuing two distinct lines of argument. The first focuses on whether ministers can use the royal prerogative to activate Article 50 and the United Kingdom's departure from the European Union. The second concerns the so-called "Sewel" convention. Is Holyrood's consent constitutionally necessary, if Article 50 is to be activated? 

Let's start with the first line of argument. The royal prerogative is the name given to the residual legal powers of the crown. Its exercise entitles Her Majesty's government to enter treaties with foreign powers, or even to declare war, without reference to parliament. Earlier this year, the three judges of the Divisional Court held that Theresa May's government could not use the foreign affairs prerogative to activate Article 50. The Lord Chief held that Westminster must pass legislation, to begin disentangling Britain from the EU, and stripping away the rights in domestic law connected to it. The Scottish Government have weighed in behind this argument, but appeal to different sources.

The Lord Advocate invokes the preamble to the Claim of Right Act, passed by the old Scottish Parliament in 1689 in the aftermath of the eviction of King James VII and II from the country and the throne. Parliamentarians slammed James for having corrupted his rule "from a legall limited monarchy to ane Arbitrary Despotick power and in a publick proclamation asserted ane absolute power to cass annull and dissable all the lawes." Their 1689 Act states any attempt to use crown authority to "cass, annull and dissable" laws was itself "Contrair to Law." 

Here, the 1706 and 1707 Acts of Union warrant a passing mention. As James Wolffe points out, Article XVIII of the Acts provides that  "all other laws in use, within the Kingdom of Scotland, do after the union and notwithstandng thereof, remain in the same Force as before ... but alterable by the Parliament of Great-Britain." Notice the critical point here. "At the foundation of the United Kingdom, it was Parliament ... and not the Crown, which was given power to change the law of Scotland."  Read together, he suggests, these sources confirm the Divisional Court's judgment that it is for parliament -- not the crown in exercise of its royal prerogatives -- to alter the law of the land. 

Here the Scottish Government's argument shifts forwards, towards more contemporary sources. Wolffe argues that if Theresa May was entitled to use the prerogative to activate Article 50, its effect would hollow out a range of laws currently applicable in Scotland, including the Scotland Act, which "assumes the UK, including Scotland, is a member of the EU." The devolution legislation requires Holyrood to respect the rules and regulations of EU law. So too must Scottish ministers. "The effect of withdrawal from the EU", he contends, would be to "cass, annul or disable" these provisions - a step which the Lord Advocate concludes "may not, compatibly with the Claim of Right Act 1689, be effected by an act of the prerogative alone."

If the Supreme Court accepted this line of argument, it would be for the Westminster parliament to legislate for Article 50. But where stands Holyrood then? Here, the Lord Advocate's case shifts onto different terrain, and its second main theme. Is Holyrood's consent required or not to legislate for Article 50? As AV Dicey famously maintained, Westminster is sovereign under the British constitution. Between 1707 and 1998, MPs legislated for Scotland. Devolution didn't deprive the UK parliament of this power. This is recognised in the Scotland Act 1998 itself. Section 28(7) stresses that devolution "does not affect the power of the Parliament of the United Kingdom to make laws for Scotland."  

But since 1998, the interaction between the two parliaments has been governed by a constitutional convention, sometimes called the Sewel convention. The Scotland Act 2016 recognised the long-standing rule of constitutional morality that Westminster "will not normally legislate with regard to devolved matters without consent." This convention is generally regarded as having two limbs. Firstly, if the UK parliament wants to pass legislation in areas lying within Holyrood's powers - on health say, education, or family law - MPs should seek consent from MSPs. But beyond that, if Westminster legislation would expand or contract the powers of Scottish Parliament or its ministers, this too requires consent.  A good example of this was the additional powers devolved by the Scotland Act 2016 itself.

In his brief, the Lord Advocate argues that "withdrawal of the UK form the EU would alter the competence of the Scottish Parliament and Government, and the law applicable in Scotland within devolved competence. A Bill to authorise withdrawal would accordingly engage the legislative consent convention." Holyrood's consent, he says, must be sought. 

For the sake of argument, let's say that the UK Supreme Court agree with him. Then what? Does the convention have any legal teeth? Consider, for example, the eminently plausible scenario, that the majority in Holyrood refuses to give its consent to any Article 50 Bill, unless the UK government commits to pursuing the gentlest Brexit possible. Say also that Theresa May is unwilling to bow to this pressure, and presses on with an Article 50 Bill and the hardest of hard Brexits. Is the Lord Advocate seriously suggesting Holyrood has the legal power to frustrate Westminster? In law, does the Scottish Parliament hold a Brexit veto? The answer may disappoint you, and irate headline writers everywhere. 

If you read the Scottish Government's submissions carefully, they actually conclude Holyrood has no legal power to "block" an Article 50 Bill passed by Westminster.  If the UK parliament were to choose to pass an Act of Parliament without Holyrood's consent, the Lord Advocate concedes, "the courts could not decline to recognise the validity of the resulting Act." He accepts that Holyrood has no legal trump over Brexit. Politically, of course, overriding Holyrood and ignoring its objections would embroil the two governments and parliaments in a potentially poisonous constitutional crisis. 

And it is this opportunity to put Theresa May under political pressure which the Lord Advocate seems to be angling for in this intervention. What he is looking for is a direction from the Supreme Court that constitutionally, Holyrood should be consulted about any Article 50 Bill, whether or not Westminster respects Holyrood's conclusions. This, he suggests, "would not involve an impermissible interference with proceedings in Parliament" and would represent the Court fulfilling "its proper function of identifying the constitutional requirements."

It remains to be seen whether either of these lines of argument prosper. You can read the whole submission for yourself here.

Legally, can Holyrood "block" Brexit?

"100 days on from the referendum and with up to six months until the triggering of Article 50 it is time the government got serious and put our economic interests and membership of the single market at the front of their negotiating plans. With a clear majority in the Scottish Parliament for retaining membership of the single market - expressed as recently as last week - it is difficult to‎ envisage the circumstances in which the Scottish Parliament would give consent to any legislation that did not guarantee this."

So said Nicola Sturgeon's Bexit minister, Mike Russell. But what did he mean? What precisely can and can't Holyrood do, in resisting the many-layered legal complexities of Brexit? Several souls have asked me about this other the last day or two. So here's the lightweight primer on the law. Brace yourself. It gets a bit tricky.

First thing's first: Holyrood has no legal power to veto or block Brexit. Start with the basics. Under Schedule 5 of the Scotland Act, foreign affairs – including Britain’s relations with the EU – are matters reserved to Westminster and Whitehall. Under section 29 of the legislation, Holyrood is prohibited from passing its own laws concerning nuclear weapons, defence, and so on. Legally, these are Westminster's purview. And because they are Westminster's purview, MPs and the UK government, don't need the Scottish Parliament's permission to alter the law on reserved matters. 

But there are some kinds of Westminster legislation which do require the nod from MSPs. This isn't a matter of strict law - but of constitutional convention. This convention was set out in section two of the 2016 Scotland Act. "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," it said. As I pointed out at the time, you can feel the caveats in the statutory language: "normally", "recognised." Whitehall's clear view is that this section doesn't limit the sovereignty of the London parliament to make or unmake any law whatever, irrespective of Holyrood's complaints.  

But this statutory recognition includes only part of the convention. The UK government has consistently recognised that Holyrood's consent is necessary, if Westminster wants to change the legislative competence of the parliament, or to add or subtract from the executive competence of Scottish ministers. One good example of that was the 2016 Act itself. David Mundell recognised that the Edinburgh parliament had the right to refuse the new powers, and a vote was taken. 

This convention proves some - very limited - constitutional security for Holyrood from the prospect of Westminster abusing its sovereignty to reverse its decisions in devolved areas. But it doesn't apply beyond that. Holyrood’s consent clearly is not necessary to activate Article 50. Only politics can prevent the hard Brexiters in the Tory government from dragging us out of the single market.

Through some creative  lawyering, you might just be able to cobble together an argument and get a case up on its feet.  In the High Court in Belfast, litigants are attempting precisely this. But their chances of victory are remote. The court case is really about boosting the political salience of the situation in Northern Ireland. As someone tweeted as me, in response to my Times column this morning, if Scotland counts for "nothing" in Brexit Britain, how much the worse for Ulster and its people? 

So that's the bottom line. Holyrood's consent is only needed if Westminster wants to legislate about devolved matters. But even then -- failure to give consent can be overriden by the exercise of parliamentary sovereignty. So what, then, can Mike Russell have meant when he said Holyrood might refuse consent for Mrs May's Great Repeal Bill? And what effect would refusing consent have anyway?

You've got to recognise that EU law is everywhere in UK law, and it isn't neatly packaged in one big book of rules, embossed in gold and bound in red buckram, easily tossed onto a bonfire. EU norms are enshrined in a dizzying array of documents, from the European Communities Act 1972, to ordinary legislation, to regulations, to the Scotland Act itself. In terms of UK constitutional law, some areas principally regulated by EU law are devolved, others not. The UK Equality Act 2010, for example, gives effect to European non-discrimination directives -- and is for the main part, a reserved matter. Holyrood can't amend or repeal it. 

Fishing, on the other hand, is only very partially reserved to the London parliament. But to ensure Scottish Parliamentarians didn't go voyaging on stranger tides, in 1998, MPs decided to constrain the new parliament's powers. Section 29 of the Scotland Act requires all Scottish legislation comply with the rights set out in the European Convention on Human Rights -- and EU law too. That's why, for example, the Scottish Whisky Association were able to take the SNP's minimum alcohol pricing legislation to court. The liquor manufacturers argued that the legislation interfered, unlawfully, with the European single market, by discriminating against producers able to pump out plonk on the cheap, by requiring them to sell their products at an inflated cost.  The requirement to tender for ferry services is another -- controversial  -- example of EU law at work.

The critical point is -- the Great Repeal Bill seems likely to stretch across reserved and devolved issues simultaneously. Some parts of it will require the Scottish Parliament's consent, others not. But as Professor Colm O'Cinneide, from UCL recognised, the legislative consent motion before Holyrood "may have to be drafted in broad terms, and of course will need to cover EU law provisions" written into Scotland's devolution settlement.

Which is where Mike Russell's "block" comes back in. Under the Scotland Act, Holyrood must obey EU laws, on fishing, agriculture, non-discrimination. If the PM wants to strip out those rules or to change Holyrood’s powers – she will need to secure the consent of a majority of MSPs. As things stand, it is perfectly conceivable that Scottish politicians will decide to defy Westminster. Mrs May would then have to decide whether to ignore their objections, riding roughshod over constitutional principles -- or to respect them, and leave Holyrood subject to EU law, but paradoxically, outside the European Union.

It isn’t necessarily obvious, however, why our parliamentarians would refuse their consent. It isn’t the Scotland Act restrictions which guarantees the rights of Scots to move freely, and to work and resettle across Europe – but the UK’s dying EU membership. Many EU rules are, in principle, about sharing burdens as well as benefits, while keeping an eye out for backsliders, free riders and chancers. Every state, for example, is likely to be inclined to discriminate in favour of its domestic industries in the economy, and to cultivate a more unfree market. EU single market rules seek to eliminate this across the whole bloc. 

But why keep the rules, when you aren’t part of the club? Unless the requirement to adhere to EU law was stripped out of the Scotland Act - we'd be looking at carrying their burdens, without seeing their benefits. An invidious position, no? There are a few more and less convincing answers to this objection. The symbolism of such a vote in Holyrood is obviously significant. Most folk won't follow the legal niceties of what the consent procedure actually represents. It will, inevitably, be seen in simpler, more political terms. Does Holyrood capitulate or not in the teeth of the Tories' haughty insistence that Brexit is their baby, and it will be midwived into monstrous shape only on their terms? That is how it is likely to be seen - presented - and understood by many.

For the SNP, retaining EU law might also represent a statement of intent about an independent Scotland’s future inside the Union. Why radically diverge from EU rules, when you want to join the club, sooner rather than later? Shadowing (some) of the regulation could be seen as a significant gesture of this kind. But you could do this, without making it a legal requirement to legislate in a way which is compatible with EU principles. And let's be honest: eliminating EU regulation would create opportunities as well as challenges, to take policy positions prohibited by single market rules.  

Alan Page, Professor of Public Law at the University of Dundee, has identified another - slightly trickier - issue with the Great Repeal wheeze, in his short paper for the Holyrood committee scrutinising Brexit. The key point is identified in paragraph 13 of Professor Page's note.  He is concerned about the possibility of UK government ministers disapplying and altering EU law concerning devolved matters in Scotland, without any reference Westminster, or to the Edinburgh government or Parliament. Law is made in many ways. One important source is what is called "subordinate legislation" - generally powers exercised by ministers in the government, often with lighter scrutiny from MPs than full-blown Act of Parliament. Mrs May's government seems likely to use this tool to prune the EU law which applies in Britain. But there's a problem. Professor Page:

"At the moment there is no requirement of the Scottish Parliament’s consent to UK subordinate legislation transposing EU obligations in the devolved areas; nor is the Parliament routinely informed about such legislation. Were obligations to be transposed by UK Act of Parliament the Scottish Parliament’s consent would be required, but if they are transposed by subordinate legislation its consent is not required. The situation could thus arise in which the UK legislated extensively in areas devolved to Scotland without seeking the consent of the Scottish Parliament as there would be no requirement of its consent in relation to subordinate legislation altering the effects of EU law in the devolved areas. In my view, this represents a significant potential gap in the framework of Scottish parliamentary control over UK law making in the devolved areas, which the Scottish Parliament should be alert to the need to close should UK Ministers be given the power to revise EU law in the devolved areas."

If Mrs May's Great Repeal Bill laid the foundations for this kind of arbitrary mode of decision making, without reference to devolved institutions, the Scottish Government would understandably hit the roof, and refuse to give their blessing to her Bill. They would be right to do so. From a political perspective, all of this is pungent. Legally, however, Holyrood can really only stage a weak, rear-guard action on the Brexit fallout. So long as we remain tethered to the UK government, we're tethered to its fate, outside of the European Union. Despite Mr Russell’s fighting talk, the legal scope for Holyrood to make Brexit mischief remains very limited. As for the political opportunities? Well: they're a different matter entirely.

Schrödinger's womb

I've been traipsing after Michael Gove in his various - sometimes curious - parliamentary appearances on the proposed abolition of the Human Rights Act. The Tories are in a bit of bother. Mopping up after the majestically incompetent predecessor Chris Grayling, the new Lord Chancellor has the thankless task of marshalling the Conservatives' jury-rigged proposals to abolish the HRA - and to replace it with a British Bill of Rights - into some kind of defensible public shape. 

This morning, he was explaining himself to Helena Kennedy's EU Justice subcommittee in Westminster. And what remains clear after today's session is: devolution remains a big problem for the UK government's HRA repeal policy -- amongst many others. 

In June last year, Gove told MPs that "in this United Kingdom Parliament, human rights are a reserved matter." He has been rowing back on that decisive statement ever since. In December, he told the Lords Constitution Committee that human rights was "neither reserved nor devolved".

As Helena Kennedy recognised from the chair this morning, "one of the really tricky issues around all these discussions is connected to devolution." Is Holyrood's consent - and the consent of the Cardiff and Belfast - required either to abolish the Human Rights Act, and to introduce any British Bill of Rights? Former Met commissioner, Ian Blair, took up this line with Gove this morning.

Blair: "Some of the evidence we have received from some of the members of the devolved institutions has been really rather surprising. Quite striking. One that I will particularly quote from is from the member of the Scottish parliament, Mr Biagi, who made it absolutely clear to the committee that in his opinion - and in the opinion of his party - human rights legislation is not a reserved power. And as far as I can see, it is either a reserved power, or it is a devolved power. 

But that is not the position I think you took in front of the Constitutional Affairs Committee in December. And it is not the position that those bringing forward and through the House of the Scotland Bill took. 

But none of us - I think - can understand how it can be neither reserved nor devolved - which makes you feel a little bit pregnant. I mean, it is just not possible. It is either reserved or devolved. So -- my question to you is: do you agree that the consent of the devolved parliaments would be required for an application of -- for the introduction of -- a British Bill of Rights to devolved regions?" 

So what did the Lord Chancellor reckon? Gove doubled down on his strange formulation from the Constitution Committee last December.

Gove: "It is neither reserved nor devolved. But it is the case that any reform or change to the Human Rights Act is a matter for the Westminster parliament. The application of human rights is a matter for Scots courts and indeed, for the Scottish executive -- Scottish government. Within that, so -- um, um,-- it might be -- if you could imagine the state of permant pregnancy, then that's what we have. As for consent, we will consult on what we think is the best way of involving all the constituent parts of the United Kingdom in understanding the case for rights reform. But I wouldn't want to prejudge at this stage exactly how we might  do so."

So. Um. There we have it. "Permanent pregnancy." According to the Lord Chancellor, human rights are the Schrödinger's womb of British politics. If you are prepared to read between the lines of what Gove is trying to say --  you can detect a pretty hazy rendering of the argument I put here. Ish. Just about. If you squint, and peer through the bottom of the milk bottle. Gove's performance today underscores the point. In contrast with the Scottish government's straightfoward legal view - the Sewel convention is engaged by repealing and replacing the Act - the UK government remains in an awful guddle. And if this morning's Lords drubbing is anything to go by, it'll take all of his cunning to free the Lord Chancellor from devolution trap his government has unthinkingly blundered into.  

Pressed on whether or not the outcome of this process might not be an English, rather than a British Bill of Rights, Gove continued:

"I would hope that there would be a British Bill of Rights. But the one thing I will concede is that while I have many friends -- and there are many people who I admire in the Scottish National Party -- it is nevertheless the leadership of the Scottish National Party might want -- if you can imagine such a thing -- to view this exercise through a party political lens. Certainly, in the run up to the Scottish parliamentary elections. I hope we can encourage them to resist that temptation."

Temptation indeed. Heaven forfend.

Alistair Carmichael: The Man Who Saved the HRA?

Alistair Carmichael is clearly a lazy thinker. The former Secretary of State for Scotland secured a debate on the Human Rights Act in Westminster Hall this Tuesday. During his remarks, the former solicitor held forth at length on the devolution implications of repeal - and got his law almost entirely wrong: muddle, guddle and confusion. 

He told MPs that the Human Rights Act is "hardwired into the devolution settlements in Scotland, Wales and Northern Ireland." It isn't. He claimed that "their Acts must be compatible with" the Human Rights Act. They don't.  He concluded "it has already been established that if this is to change, at least for the Scottish Parliament a legislative consent motion would be required in accordance with the Sewel convention." He clearly wasn't listening, when this claim was directly contradicted by government ministers Michael Gove and Therese Coffey. 

Happily, SNP's Joanna Cherry was rather more on the ball, echoing the analysis this blog has been pushing for some time. The Edinburgh South West MP set out the terrain of potential conflict in clear, sharp detail in her speech:

"The SNP has been deeply concerned by recent statements from Ministers that suggest that they believe that the UK Government could repeal the Human Rights Act without reference to the Scottish Parliament. They argue that the Sewel convention would not be engaged because human rights are a reserved matter. That is wrong and legally illiterate. Human rights are not a reserved matter and are not listed as such in schedule 5 to the Scotland Act 1998. Schedule 4 to the Scotland Act protects the Human Rights Act against modification by the Scottish Parliament, but human rights per se are not a reserved matter. It was part of Donald Dewar’s scheme that all matters would be devolved unless they were specifically reserved. Human rights are not specifically reserved. 

Moreover, human rights are written into the Scotland Act. The European convention on human rights is entrenched in the Act through section 29(2)(d), which provides that an Act of the Scottish Parliament that is incompatible with the ECHR is actually outwith the legislative competence of the Scottish Parliament. Section 57(2) states: 

“A member of the Scottish Executive has no power to make any subordinate legislation, or to do any other act, so far as the legislation or act is incompatible with” 

the ECHR. It is therefore incorrect to say that human rights are a reserved matter. They are devolved and I urge the Minister to think carefully about the statements made by his colleagues to the effect that the Sewel convention would not be engaged.

 

The Prime Minister has repeatedly spoken of a “respect” agenda, and I stand here as one of 56 SNP Members elected at the general election. I urge the Government to consider their respect agenda, to return to the Scotland Act 1998 and to get their lawyers to look at it carefully. They will find that human rights are not a reserved matter and are devolved, and that the Human Rights Act should not be repealed or otherwise interfered with by the British Parliament without first seeking the consent of the Scottish Parliament. 

I want to make it clear, however, that the SNP would seek to prevent the repeal of the Human Rights Act for the whole United Kingdom. It is a fundamental issue and we want the Human Rights Act to remain on the statute book for the entire UK because, as the right hon. and learned Member for Beaconsfield said, it has brought huge benefit in terms of the accessibility of rights for people in this country."

The minister in the debate, Dominic Raab, failed to respond to any of these points. Carmichael's legal blundering isn't just innocent confusion over a technical topic -- even if we might expect better from a University of Aberdeen LLB. His fudging and his mudging can only help to disorientate opponents of Tory repeal plans, strengthening the UK government's hand, and diverting our attention away from viable stratagems of resistance. I'm sure it isn't deliberate mischief. It's just the usual incompetence and sloth. But if Carmichael is serious about defending the Act from the Tory axe, he's going to have to buck up his ideas -  or take his bungling elsewhere. 

Does repeal of the Human Rights Act require Sewel consent?

That's one of the critical questions in the legal and political battle against Tory plans to abolish the Human Rights Act.

Iain Jamieson, Professor Christine Bell and yours truly have argued that "axing the Act" would and should require Holyrood's consent under the Sewel convention -- which could be withheld. Hitherto, the UK government has been keeping its legal cards close to its chest. Gove has been mum. The Secretary of State for Scotland turned in a car-crash interview on Radio Scotland shortly after the election, in which he showed no awareness whatever of the devolved implications of his government's repeal plans. Little has been said since. Until last Monday, that is. 

Responding to Joanna Cherry's human rights amendment to the Scotland Bill in Westminster, Deputy Leader of the House, Therese Coffey, responded for the government. Significantly, she claimed that the Human Rights Act should be seen as a matter reserved to Westminster, invoking precisely the logic I warned about on Monday. She told MPs:

"The hon. and learned Member for Edinburgh South West referred in particular to amendment 67. Indeed, the right hon. Member for Orkney and Shetland said that this matter should be consistent across the UK, reinforcing that this is a reserved for the UK Parliament and not a devolved matter. The hon. and learned Lady said that the UK Government had not been clear on some aspects of this matter. I believe that the Prime Minister has been clear at this Dispatch Box. Amendment 67 would amend the Bill such that paragraph 1 of schedule 4 to the 1998 Act would be modified to remove the Human Rights Act 1998 from the list of legislation the Scottish Parliament cannot modify, otherwise known as the “protected enactments”. The House will be aware that the Government outlined their proposal to reform and modernise our human rights framework by replacing the Human Rights Act with a Bill of Rights. That was reinforced today by my right hon. Friend the Prime Minister at the celebration of the 800th anniversary of Magna Carta. Of course, we are aware of the possible devolution implications of reform and we can engage with the devolved Administrations as we develop the proposals. As the Secretary of State said, the Sewel convention, as intended by Lord Sewel, has been placed in the Bill, but this Parliament remains sovereign. The Government are certainly committed to human rights and, as I indicated earlier, we will consider the devolution implications."

Pete Wishart intervened, grouchily (and a bit inaccurately):

"That is just not good enough. These are fundamental and profound issues for the Scottish Parliament. We are dependent on the Human Rights Act for the competence of the Parliament. Will the Minister vow to go forward, make sure this is looked at properly, and come back with a more suitable and substantial response?"

And Coffey replied:

"The hon. Gentleman is right that these are important matters, and I can assure him that my right hon. Friend the Secretary of State is engaging with the devolved Administration as we develop the proposals. It has to be said, however, that the amendment is squarely outwith the Smith commission agreement, which contained no proposals in this respect. The hon. and learned Member for Edinburgh South West herself said it was not directly a matter for the Scottish Parliament."

In a nutshell, this suggests the Westminster government will argue that by dint of its inclusion as a protected enactment in Schedule 4 of the Scotland Act, the Human Rights Act is a reserved matter and Holyrood's consent is not required for the Tory majority to repeal the Act north and south of the border. Coffey's answer did not address the arguably more important question - will consent be required to enact a British Bill of Rights?  

But a straw in the wind. 

The SNP's clever, clever human rights gambit...

I missed out one superficially technical but politically interesting amendment in this morning's brief survey of the SNP's plans for the Scotland Bill.  Tabled in the names of Angus Robertson, Mike Weir, Stewart Hosie, Eilidh Whiteford, Joanna Cherry and Kirsten Oswald, amendment 67 proposes that:

“(1A) In paragraph 1 of Schedule 4 (protection of Scotland Act 1998 from modification), delete “(2)(f) the Human Rights Act 1998.”

Blank faces all round.  Let me fill in a bit of the background. Under the Scotland Act, Holyrood legislation must not "relate to reserved matters". These are set out in Schedule 5, and include foreign affairs and defence, and great swathes of taxation, social security policy - and so on. The other main way in which Westminster limits Holyrood's power is Schedule 4, which sets out specific pieces of legislation which the Scottish Parliament cannot modify, amend or repeal. This includes the free trade sections of the Act of Union, the core provisions of the European Communities Act -- and also the Human Rights Act 1998. 

As I have written here before, human rights fall in a funny place under the devolution settlement in Scotland.  Human rights are a devolved matter but Holyrood cannot touch the Human Rights Act. Your Convention rights are written into the Scotland Act. In making legislation, and taking decisions, the Scottish Parliament and Government must uphold your basic Convention rights. But the Human Rights Act extends much wider, to every public authority in the land. To every school, every hospital, every prison and every court.  So what is the SNP Westminster leadership up to here? Why seek to knock the Human Rights Act out of schedule 4?

Superficially, this amendment would give Holyrood the power to amend or repeal "Labour's hated Human Rights Act" -- an odd proposition from a party which has made a great hullabaloo about resisting the Tory plans for repeal.  But reading between the lines, I strongly suspect that this amendment is really about knocking down the UK government's last, best argument that it can repeal the HRA without Holyrood's consent. 

Another brief constitutional law 101. The UK parliament remains sovereign. It can, if it wishes, pass Acts related to devolved matters. But in order to respect the authority of the new parliament, the constitutional convention has developed that Westminster will not pass laws (a) relating to devolved matters or (b) amending the Scotland Act without Holyrood's consent. 

For example, the Lib-Lab coalition in Holyrood gave Westminster legislative consent to pass a pan-UK Civil Partnership Act in 2004, despite the fact that family law fell squarely within the Scottish Parliament's competencies. Consent was sought for the changes instituted by the 2012 Scotland Act. And consent was denied in 2011 for devolved aspects of the UK government's welfare reform agenda.  However, Westminster requires no consent when it legislates for reserved matters. Scottish Ministers may stamp their feet a much as they like -- but the Westminster majority rules. 

Which brings us back to Human Rights Act repeal. It is broadly accepted that introducing any British Bill of Rights would require Holyrood's consent. Its provisions would have a significant impact on devolved powers. But what about a straightforward repeal of the Human Rights Act? Would MSPs get a say or not? Is the Sewel convention engaged? The UK government has given no indication on its thinking on these questions in public. Like Iain Jamieson, I think there are already good reasons to argue that repeal would and should engage Sewel. But if I was Lord Chancellor Gove, looking for a way around the convention, my argument would run as follows -- 

Human rights may be a devolved  matter, but by dint of its inclusion as a protected enactment in Schedule 4 of the Scotland Act, the Human Rights Act is not. The Human Rights Act is reserved. Accordingly, Gove's argument would run, Holyrood's consent is not currently needed for the Tory majority to "axe the Act". Professor Mark Elliot of the University of Cambridge has also argued this case.  Expect other constitutional lawyers to do so too.  

In the light of that argument, think again about that tricksy SNP amendment number 67, and reason through its implications. If the Human Rights Act was deleted from Schedule 4 of the Scotland Act, the Act could no longer be said to be a reserved matter. If it could not longer be said to be a reserved matter, the Sewel convention would be engaged and Holyrood's consent would be required for any repeal. 

While at first glance, the amendment would empower the Scottish Parliament to eliminate human rights from the statute book, in practice, it would significantly strengthen the Parliament's hand in resisting the Tory human rights agenda. If this SNP proposal was enacted, it would knock out the Tory government's best and only argument that Human Rights Act repeal would not require Holyrood's consent. 

Clever, clever. 

Devolution: Grayling's human rights petard

Joy be. "So at long last, with a Conservative Government after the next election, this country will have a new British Bill of Rights to be passed in our Parliament rooted in our values and as for Labour’s Human Rights Act? We will scrap it, once and for all." 

Earlier this week, the Tories put some flesh on the bare bones of Cameron's commitments in his conference speech, in a document entitled "Protecting human rights in the UK." The document's only reference to the implications of the wheeze for the devolved authorities in Northern Ireland, Wales and Scotland is the banal observation that:

"We will work with the devolved administrations and legislatures as necessary to make sure there is an effective new settlement across the UK."

English lawyers like Carl Gardner and Mark Elliot have already begun to put the logic of Chris Grayling's madcap scheme to the sword. To some extent submerged in all of this, however, are the implications for Scotland. And here it gets a wee bit complicated. Professor Aileen McHarg has a comprehensive blog on point up on the UK Human Rights blog which surveys the key issues. What follows is a more compressed account, given a more partisan topspin.

A couple of days back, David Maddox published a story on the Scotsman ("Scotland exempt from Tories' Human Rights axe"), which carried a remarkable, clearly edited and utterly incoherent quote from an unnamed Scotland Office spokesman, claiming

"... that human rights legislation is devolved to the Scottish Parliament because it was “built into the 1998 Scotland Act [and] cannot be removed [by Westminster]."

Cue a good deal of misplaced jubilation from folk, keen to see fundamental rights retained in Scots law. Regrettably, the comments attributed to the spokesman, and uncritically printed by Maddox, are credibility-dynamiting rot. They're abject drivel.

Firstly, the Scotland Act is Westminster legislation, and susceptible to amendment or repeal by MPs. To say something is "built into" the Act is neither here nor there. Secondly, the Human Rights Act is categorically not "written into" the Scotland Act. This is a common conflation, but an extremely problematic one. While you won't find human rights listed as a reserved matter in Schedule 5, the Human Rights Act itself appears as a protected enactment in Schedule 4. Short version: human rights are devolved, and Holyrood can pass laws concerning them, but the Scottish parliament is not allowed to repeal or to change the Human Rights Act as is.

As Aileen writes, Scotland is currently subject to two distinct human rights regimes.

The Scotland Act requires Holyrood legislation and Scottish ministers to comply with European Convention rights, but nothing more than that. If legislation or ministerial action violates your fundamental rights, you can traipse off to court and get the offending law or subordinate legislation struck down by the courts. The silence at the heart of the Tory human rights plans about what will become of these devolve protections and constraints is deafening. 

The octopoid Chis Grayling shows no awareness whatever about the devolved dimension, which extends not only to Scotland, but to Wales, and to the Northern Irish Assembly, where the incorporation of human rights formed a core plank of the Good Friday Agreement. All for the sake of a few extra votes in Essex, and the lawful authority to deport people where we reasonable expect them to be tortured, or to be subject to inhuman and degrading treatment, or the flagrant denial of justice.

So much for an ethical foreign policy. The declared aims of the Prime Minister, Theresa May, and the Lord Chancellor are nakedly monstrous and unjust. They make my blood boil. Alyn Smith was right before the referendum: there is bugger all we can do to prevent it within the Union. Not with a Tory government in the grip of a victim-fantasy and strung along by it own fairy tales.

By contrast, the Human Rights Act extends to all public authorities in Scotland. Schools, local government, NHS hospitals. If Westminster abolishes the Human Rights Act, Holyrood and the Scottish Government will remain bound over to observe Convention rights, but Glasgow City Council and the police will be liberated from their obligations to respect freedom of religion and conscience and the privacy and home life of everybody they encounter.

Cue another level of complexity: Sewel motions, or legislative consent motions. Here's where things get politically interesting. As we know, powers devolved are powers retained. Westminster retains the right in law to legislate for devolved matters. In practice, however, that right has been circumscribed by the convention that consent from Holyrood is necessary (a) where Westminster proposes to legislate in a devolved area (for example, the whole-UK civil partnerships legislation of 2004) or (b) where the UK parliament propose to change the scope of the Scottish Parliament's legislative competence (for example, the 2012 Scotland Act, which received the nod from the majority of MSPs).

Under the current convention, the proposed repeal of the Human Rights Act (insofar as it applies in Scotland) and the introduction of any British Bill of Rights proposing a different human rights protection mechanism requires legislative consent from Holyrood. Whichever way you slice it, the refusal of consent looks odds on, either to any Tory plans to (a) eliminate the ECHR provisions from the Scotland Act, or (b) to introduce any new, watered down British Bill of Rights. 

With a Nationalist administration in Edinburgh, these issues take on an additional piquancy. Much more attractive, you might well think, to adopt distinct, Scottish human rights legislation, extending to all public authorities subject to Holyrood's jurisdiction. This approach may be justified, not least, by some of the absurdities of the Bill Grayling has sketched in outline, drubbed by various legal commentators quoted above.

We might even consider folding additional rights into that Scottish legislation which are not to be found in the European Convention. The rights of children, perhaps. We can use our imaginations. As Professor McHarg notes, there is a distinct possibility of fragmentation and complexity here, as both reserved and devolved authorities operate in Scotland and both would be subject to different human rights regimes. On the other hand, let's not make the best the enemy of the good. If Cameron is returned to No. 10 with a majority, "Labour's Human Rights Act" - which was, it should be remembered, supported by newspapers like the Express when it was adopted - will be a dead letter. Far better for the Scottish Parliament to set a different example, however imperfectly.

But one thing's for sure: despite the blithe spirit of indifference animating the Lord Chancellor's fag packet proposals, the fuse has been cut and the taper set to it. The devolved politics of Human Rights Act repeal looks dead set to explode.

Holyrood to tell Westminster to sod off on welfare reform?

One of the reasons I'm such a bore about the Scotland Act 1998 (in addition to my own inveterate tendencies in that direction) is that perceptions of what Holyrood can and can't do will inevitably effect what Holyrood will and won't do. A bland saw if ever there was one, but there is, I think, a neglected point hiding within it. Sometimes, there is legislative will but the relevant powers are reserved. Sometimes one is tiptoeing along the line of reserved and devolved matters, or touching on EU law or fundamental rights, and trying not to lose one's balance and take a damaging and delaying tumble into the courts. Although we tend to associate Nationalists are being natural aggrandisers of their own jurisdiction, keen to collect any power over matters Scottish going begging - there is also the curious phenomenon of treating devolved matters as if they were reserved. One example, discussed on this blog, concerned the summer's News of the World scandal, and the Information Commissioner's Operation Motorman report.  Although  risking obnoxious and extended self-quotation, this excerpt articulates just the sort of thing I'm getting at:

Legislation in Westminster is by no means easy.  However, its members and its government are at least mostly relieved of the difficulty of asking: is doing policy X within our powers at all? They enjoy a basic liberty of action. Not so, with Holyrood. To use a picturesque phrase sometimes deployed, the Scottish Parliament was not born free. The limits of the Scotland Act - and the way powers are implicitly granted rather than explicitly enumerated - call for a high level of legal sophistication if the full extent of the parliament's powers are to be understood. This can be particularly challenging if you stray outside the familiar, well-trodden areas of Holyrood legislation. Unfortunately, there are not many signs of such sophistication, either in the press, or on the benches of the parliament.

Paradoxically, as with press regulation, this limited understanding of the full extent of the Scottish Parliament's existing powers results in an SNP government and parliamentarians treating issues which are within their powers as being concerns properly limited to Westminster only.  Alex Salmond issues statements of the sort quoted at the beginning of the piece, which leaves the profound but erroneous impression that he and his Ministers and the Scottish Parliament are fettered and tied. They can only sit back, pull constructive faces, demand better consultation with Westminster authorities - and wait for Sewel motions, which are passed on the nod. It is worth remembering what these legislative consent motions are all about. Conventional instruments rather than mandated by strict law, at their most basic, these motions are used where Westminster legislates concerning devolved matters. Although many pieces of legislation emerging from Westminster might concern commingled reserved and unreserved issues - when you see a Sewel Motion, the proposed Westminster Bill before you addresses, at least in part, devolved powers and consent is simply not solicited in areas reserved to the London Parliament.

This phenomenon popped into my napper as I read this piece by the Burd at Better Nation, talking about Holyrood's examination of Iain Duncan Smith's Welfare Reform proposals, debated later today on the following motion from Nicola Sturgeon:

"That the Parliament notes the Welfare Reform Bill that is currently being considered by the UK Parliament; regrets that the far-reaching proposals contained in the bill are being pursued against the backdrop of substantial cuts to welfare benefits announced in the June and October 2010 UK budgets; further regrets the impact that these cuts will have on some of the most vulnerable individuals and families in society and on the local authority and third-sector organisations committed to supporting vulnerable people, and calls on the UK Government to pursue a welfare system that is properly financed, simple to understand, lifts people out of poverty and makes work pay."

Hardly a ringing endorsement of the Her Majesty's government's approach to welfare reform, you might well think, but tone is more in sorrow than in anger. To regret is not to deplore, nor is to lament to oppose. How then is Sturgeon's motion to be understood? Does it suggest that a consent motion would be passed by the SNP majority - albeit with rhubarbs about the policies of the Westminster government - or insofar as devolved consent is required, imply refusal? Labour's Jackie Baillie is clearly interested in the same topic, and has proposed the following, flushing-out amendment to Nicola's motion, adding...

“... and is otherwise minded, subject to consideration by the appropriate committees, to oppose the forthcoming legislative consent motion pertaining to the Welfare Reform Bill.”

Baillie's amendment certainly puts the Scottish Government on the spot, and it'll be interesting how the SNP representatives vote on it. The fatal moment is not now, however. Like the Scotland Bill, the Welfare Reform issues fall to be considered by a committee of the Parliament, before a final decision is taken. The Bill itself is a dizzying mix of devolved and reserved matters. What if, as Baillie commends, Holyrood said - no thanks chums, we're not giving our consent? In strict law, Westminster is the sovereign parliament, able to exercise its will however it wishes, untrammelled and unfettered. In theory, the Tory-lead government could just inflict the whole scheme on us, consent or no consent, powers devolved or reserved. However, as many of my readers enthusiastically remind me - and here I very much agree with them - often, politics trumps law.  The Burd rightly talks about the potential for a constitutional crisis; not a crisis in the constitution per se, which is tolerably clear, but a political scandal with constitutional ramifications: the dull thump of political discord, conflicting mandates, and differences of opinion.  Although a subset of blimpish bloviators on the Tory benches - the priapic devotees of Westminster sovereignty - might conceivably call for such a stuffing if Holyrood rejected their Bill, the political trickiness of the thing is obvious. Perhaps most significantly, if such cavalier sensibilities prevailed, the commitments of the Sewell Convention - that Westminster won't pass Bills that provisions on devolved matters without first obtaining the consent of the Scottish Parliament - would be revealed as watery, insubstantial. "Standing up for Scotland" is a familiar Nationalist refrain. Nicola Sturgeon's assessment of Duncan Smith's reforms is hardly sympathetic, but is bedevilled by a certain gingerly-does-it passivity. The question to be asked of the SNP majority is, will they do more than oppose in word and concede in deed?

On the serpentine logic of Michael Forsyth...

With Lord George Foulkes' demission from Holyrood in May's election, I suggested that despite ourselves, we might yearn for Eckbane - the lost Clatterbag o' scandal that is, was, and shall be ever-after - flyter Foulksie. It seems, however, that even the sedate scarlet benches of Westminster's noble house have proved insufficient to cool Geordie's natural ardour.  You can't kick against the pricks, after all. The Scotland Bill, having passed its second reading before the House of Commons, has progressed with stately ceremony up to their Lordships, who are presently muttering over it at committee stage.  While watching the traffick of parliamentary amendments won't entertain or vex most, Foulksie's mischief will prove a (dis)honourable exception.  In addition to careening about on his old hobby horse about Holyrood's electoral system and trying to make variation in university fees within the UK a reserved matter, outwith Holyrood's competence, Geordie has laid a series of amendments, attempting to precipitate a Westminster organised and Westminster controlled referendum on the question “Do you want Scotland to remain part of the United Kingdom?”.

Grosso modo, Foulksie also proposes to make any future extension of Holyrood's powers over taxation conditional on a positive referendum, endorsing the proposed elaboration of the Scottish Parliament's powers. A similar wheeze is designed on the financial provisions of the Scotland Bill (enumerated in part 3 of the draft enactment). If that wasn't sufficient to rile the forces of enthusiastic political nationalism, another noble lord - a Tory whose Unionist heart is as black as the Earl of Hell's weskit - Michael Forsyth - joined Geordie, proposing the following amendment...

LORD FORSYTH OF DRUMLEAN

Insert the following new Clause—
“Referendum about Scottish independence

(1) The holding of a referendum on whether Scotland should become independent from the rest of the United Kingdom is outside the legislative competence of the Scottish Parliament (see subsection (6)).

(2) The Prime Minister may by order cause a referendum to be held throughout Scotland about whether Scotland should become independent of the rest of the United Kingdom.

(3) The order shall contain the question that is to appear on the ballot paper

(4) The referendum shall be held in accordance with provisions made in the order, applying the provisions in sections 2, 3, 5 and 6 of, and Schedules 1, 2, 3, 4 and 9 to, the Parliamentary Voting System and Constituencies Act 2011 with such modifications as are necessary.

(5) An order under this section may not be made unless a draft of the statutory instrument containing the order has been laid before, and approved by a resolution of, each House of Parliament.

(6) In Part 1 of Schedule 5 to the 1998 Act, after paragraph 1 (the Constitution) insert—

“1A. The holding of a referendum on whether Scotland should become independent of the rest of the United Kingdom is a reserved matter.””

As you can see, Forsyth's proposals are more direct than Foulkes', however, they don't aim at any great constitutional novelty. Given Westminster's sovereignty, it always had the power to call its own independence referendum, thus Foulkes and Forsyth's amendments don't surprise on that score. Where Forsyth's amendment does interest is its basic assumption, that under the Scotland Act 1998 as is, Holyrood unequivocally does have the legal competence to hold a referendum on independence. As I have argued a number of times before (often in debate with Love and Garbage), Holyrood's legal competence to hold any referendum on Scottish independence hangs by a very shoogly peg. Love and Garbage and I both agree on that legal analysis; disagreeing when it comes to the final disposal. He is confident that any Bill passed by Holyrood would be incompetent, I think the legal position is arguable, at best, but no certainty.

While I commend previous posts and links to you for a more involved account of why there is a legal problem with the referendum, put most briskly, under Schedule 5 of the Scotland Act 1998, you'll see that the first general reservation you see are aspects of the Constitution. Section 1(b) explicitly reserves "the Union of the Kingdoms of Scotland and England". Under section 29 of the 1998 Act, any law passed by Holyrood which "relates to" reserved matters is no law at all, incompetent, ultra vires. While we may debate the legal niceties (and indeed pick a way through them to a case for why Holyrood's independence referendum Bill does fall within its legal powers), on a common sense construction, a referendum on independence clearly relates to the Union.  Despite pervasive beliefs to the contrary, the Scottish Parliament's authority to deliver a referendum is by no means clear. While Newsnet Scotland is right to report of Forsyth's amendments that they are a "bid to strip Holyrood of the power over the holding of an independence referendum", what interests me is that Forsyth would concede such a power exists in the first place. Although it may be politically poisonous, and leave one open to allegations of subverting democracy, if he contended that Salmond's government doesn't have the legal competence to deliver his referendum, he would certainly be making mischief, but not entirely without basis. 

The assumptions informing Forsyth's amendment, and the difficulties an independence referendum might face, raises a further, nice legal point. You may or may not have heard of legislative consent motions - probably by their more common conventional name of Sewel motions. The Scottish Government offer this intelligible summary of their character, which I won't better:

"Nothing in the Scotland Act prevents the UK Parliament from legislating on matters which are within devolved competence: section 28(7) makes that clear. However during the passage of the Scotland Act, the UK Government announced that it "would expect a convention to be established that Westminster would not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish Parliament." (In this context 'devolved matters' does not refer just to matters that are within the legislative competence of the Scottish Parliament and could, therefore, potentially be included within an Act of the Scottish Parliament. It additionally is taken to refer to matters which, although reserved, affect the breadth of the devolved institutions' powers - i.e. the legislative competence of the Scottish Parliament or the executive competence of the Scottish Ministers.) This has become known as the Sewel Convention, and its purpose is to reflect and respect the devolution settlement and the role of the devolved institutions."

Now summon Forsyth's amendment back to mind. On his analysis, holding a referendum on Scottish independence is a devolved matter, within the Scottish Parliament's competence. Under the Sewel Convention, therefore, for this power to be returned to Westminster's exclusive competence (like the Scotland's Bill's queerest proposed re-reservation, Antarctica), a Sewel Motion would be required, as would Holyrood's agreement. In short, with an SNP majority, and on Forsyth's own theory, it has a snowball's chance in hell of being accepted by the Scottish Parliament. Assuming that the Sewel convention is properly observed, Westminster could not unilaterally claw back the power, even if the serpentine Baron Drumlean's amendment found favour on the red and green benches of Westminster.  By strict law, of course, Westminster could cheerfully override Holyrood, but that would precipitate a political scandal of such intensity that we can expect Westminster to forgo the unanswering majesty of its sovereignty, and approach the whole thing much more gingerly.

However, as we've noted, Forsyth's premise is indubitably debatable, and Holyrood's competence to hold an independence referendum is (at least legally if not popularly) in doubt. Reserved matters, by contrast, require no Sewel motions and no legislative consent from Scottish institutions. Although a clear statement that an independence referendum is a reserved matter would change the Scottish Parliament's powers - changing what was maybe competent into something that certainly isn't competent - the tantalising uncertainty about Holyrood's powers makes for tantalising uncertainty about what devolution politesse Westminster is governed by.

For my part, I am still mystified why SNP MPs have not tabled the inverse of Forsyth's amendment, putting it beyond doubt that the holding of a referendum on whether Scotland should become independent from the rest of the United Kingdom is within the legislative competence of the Scottish Parliament.  There is, I understand, still time before the Bill's final passage to insert amendments to this affect. However, if SNP representatives insist that my nerves remain raw edged, and that no clear statement of competence is included in the Scotland Bill, Forsyth's intervention may be seen in something of a soothing light. If such a frigid and inveterate Unionist customer as Forsyth has internalised the idea that Holyrood can hold such a referendum, the imaginary Unionist punter who has been haunting my thoughts for the past years may not materialise, and by sheer brass, the SNP will have overcome their legal challenges.