When is a convention not a convention? When it’s a Sewel Convention

The fundamental plank of the devolution settlement is the Sewel Convention, which states that the Westminster government will not interfere with the powers of the Scottish Parliament or intrude upon devolved competencies without the consent of Holyrood. This convention is vital if devolution is to work in a British constitutional system which fetishises the absolute sovereignty of the Westminster Parliament and whose unwritten constitution provides for no clear separation of powers and places no restrictions on the power of the leader of the party which enjoys a majority in the House of Commons.

Devolution can only work if the governing party in Westminster agrees to abide by the self-denying ordinances of the Sewel Convention. Without it, devolution is a dead letter. The importance of the Sewel Convention to the operation of the devolution settlement is such that during the 2014 Scottish independence referendum campaign the Better Together parties pledged to elevate the status of the Sewel provisions from a ‘convention’ reliant upon the willingness of the Westminster government to abide by it to statute and to enshrine it in law, giving Scotland a legal guarantee that the devolution settlement was sacrosanct and it would be placed beyond the ability of any Westminster government to meddle with it or undermine it.

This promise was one of the most important made by the Better Together Campaign, allowing them to assert to Scots that after a No vote, the future of devolution would be assured and legally protected, as such it was instrumental in swinging a No vote in the independence referendum.

As we all know now, there are lies, damned lies, and Westminster promises to Scotland. The provisions of the Sewel Convention were indeed written into the revised Scotland Act passed in the wake of the referendum, but within a couple of years the Conservative government of Theresa May sought and obtained a ruling from the UK Supreme Court stating that the relevant provision of the Scotland Act had no force in law as it went against the very English constitutional doctrine of the absolute sovereignty of the Westminster Parliament, a Westminster government can be urged to respect the Sewel Convention but it cannot be legally compelled to do so and it will suffer no legal consequences if it chooses to ignore it.

Since then, the Conservative government in Westminster, which has always been hostile to the devolution settlement has breached the Sewel Convention on not one or two occasions, but on eleven.

Speaking to Westminster’s Public Administration and Constitutional Affairs Committee, Permanent Secretary John-Paul Marks, the head of the civil service in Scotland, told MPs that the UK Government has repeatedly broken the Sewel Convention.

Marks said that while there were instances of Scotland’s two governments working well together, this came amid a “disrupted and quite regularly contested environment.

He said the Internal Market Act – which effectively gives the UK Government a veto over some Scottish laws – had created a “different operating environment to devolution compared to what went before”.

He explained: “You see that evidence in the Sewel convention and legislative consent. So up to 2018, the Sewel convention – whereby the UK Government would not legislate without consent from devolved governments in devolved areas – was always observed and there were no circumstances where that consent was not granted, where the UK Government would legislate without consent. But since 2018 there has been 11 occasions where that convention has not been followed. And so to an extent that reflects the changing nature of the political contexts post-Brexit.”

The Conservatives are using something that a majority of Scots do not support, Brexit, to undermine and hollow out something that a majority of Scots do support, a Scottish Parliament that is able to exercise its powers without Westminster interference.

The Rubicon has been crossed, not only does the Westminster government now feel that it can trash the Sewel Convention with impunity, the Scotland Secretary has also used the powers of the hitherto unused Section 35 order giving Westminster’s Scottish viceroy the power to unilaterally veto legislation passed by Holyrood that relates to a devolved matter.

The devolution settlement now stands naked and unprotected, with no defence against a power hungry British Government determined to brook no opposition from Scotland. This dire situation will only worsen if Scots allow the Labour party to win the largest number of seats in Scotland at the Westminster general election expected later this year. That will only embolden the British nationalist parties who will crow that the ‘threat’ from Scottish independence is over.

Just this week Gordon Brown broontervened to day that the ‘threat’ of Scottish independence had not gone away, and that the so called union was on borrowed time. The trashing of the Sewel Convention is a good reason why that is the case. If the British parties cannot be trust to honour the promises they make to Scotland then obviously Scots are going to look for an alternative. What exactly is the point of continuing to allow ourselves to be governed by parties which make fine promises when they want our votes but traduce their promises the second the ballots are counted. There is no point.

The fact is that a ‘convention’ that has been breached eleven times in the course of six years is no longer a convention, it is breaching it that has become the convention. This is the new normal in the devolution settlement, what was once unthinkable has become the established political reality. The Tories have given a future Labour government carte blanche to continue with the pattern of contempt for the principles of the devolution settlement that they have set in place.

You’d be a fool to imagine that a government led by Keir Starmer would behave any differently. The one constant in Starmer’s political career is his thirst for power and his willingness to lie and deceive in order to get it then having done so he ruthlessly neutralises any potential threat from those who opposed him or who might stand in his way. This is not a man who will tolerate a strong and powerful Scottish Parliament which might stand up against him.

Labour has already been giving some alarming signals about what it has in store for the Scottish Parliament should, as seems likely, Starmer becomes Prime Minister after the Westminster general election expected later this year. Anas Sarwar has been talking about what, in typically Labour Newspeak style, he is wont to call ‘real devolution’.

This will consist of stripping powers from Holyrood and giving them instead to local authorities which are both more likely to be controlled by a Labour administration and far less able to withstand an overweening Prime Minister. What Sarwar means by ‘real devolution is giving power to the Labour party. This will be done despite the fact that control of local government in Scotland is devolved and irrespective of what Holyrood might say. If Scotland is foolish enough to allow the Labour party to take power in Holyrood, a Labour controlled Scottish Parliament will willingly collude in its own neutering, but even without that, the convention that the Sewel Convention can be ignored is already well established.

Obviously recent developments will attract a lot of interest and people will want to express their views. However I must remind people that Scotland has very strict laws about contempt of court and you must exercise extreme caution in what you post. Ideally it is best to say nothing. I must also warn you that you are personally responsible for any comments you make.


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