I spoke yesterday in the Second Reading debate on the Scotland Bill. You can read the speech here. As you will see, I focused on the first two clauses, not least Clause 2, which seeks to put the Sewel convention on a statutory basis. It is not unknown (though it is rare) for a convention to be transposed into statute. The most recent example, as I mention in the speech, is that governing votes of confidence in the House of Commons. Until September 2011, it was a convention of the constitution that a Government defeated on a vote of confidence in the House of Commons either resigned or requested a dissolution. This was displaced by Section 2 of the Fixed-term Parliaments Act 2011 providing that if the motion that ‘This House has no confidence in Her Majesty’s Government’ is carried, then – if a new or reconstituted Government is not formed within 14 days and gains a vote of confidence – a general election takes place. The convention ceased when the Act took effect. The Act provides legal certainty.
The problem with clause 2 of the Scotland Bill is that it does not transpose the Sewel convention into statute. It simply states the convention: ‘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’. This draws on the words used by Lord Sewel when announcing what became the convention. It seeks to maintain the flexibility of the convention. It is embodied in statute, but without providing legal certainty. Conventions are not enforceable in the courts. Putting the words of the convention in statute means that they may be tested in the courts.
This is a novel situation and creates uncertainty. Either the convention should remain a convention, in which case Clause 2 should be removed, or it should be superseded by the legal precision of statute, in which case it needs to be re-written (or a new clause drafted). I can see I shall be busy.