The Government agreed to implement the recommendations of the Smith Commission. No limits were set, so when the Commission made recommendations that went beyond its terms of reference, the Government proceeded to put them in the Scotland Bill.
The recommendations led to clauses that were constitutional nonsense. Sub-sections (1) and (2) of Clause 1 are declaratory, stating that the Scottish Parliament and Government are permanent. As they already are, these provisions add nothing – which runs against the Cabinet Office’s own guidance on drafting legislation. The provisions are then contradicted by sub-section (3) which provides that the Parliament and Government can be abolished only after a referendum of the people in Scotland. In other words, they are contingently permanent!
Clause 2 is supposed to implement the recommendation of the Smith Commission that the Sewel convention be put on a statutory basis. The clause embodies the words used by Lord Sewel in 1998. What he said then and the Sewel Convention are different things. I have already done a post drawing attention to this and the failure of Government to grasp what constitutes a constitutional convention. The clause therefore departs from the recommendation of the Smith Commission, since the Sewel convention has not been transposed into statute. All we have are the words of Lord Sewel put on the face of the Bill. The Government want to retain a convention, yet have it in statute. Where is Alice in Wonderland when you need her?
The problems associated with both clauses were pursued at both committee and report stages in the Lords. At Third Reading, though, we were stymied by the fact that the Opposition supports the Bill and hasn’t really engaged with the arguments. Indeed, there was no contribution from the Opposition Front Bench. We were also stymied by the rules governing the admissibility of amendments at Third Reading. They limited us from coming back with more amendments. Two were tabled, but not moved, as a means of getting Government to accept that the minister should say more about Clause 2, which he did, including admitting that the clause was declaratory. That was as far as we got.
The Bill constitutes bad law. It is an exercise in how not to legislate. Neither Front Bench emerges with any credit.