I’ve already expressed my concerns on this blog about the attempts by UK Government ministers to avoid the implications of the Sewel convention in relation to the Police Reform and Social Responsibility bill for Wales (discussed HERE) and the Scotland bill (HERE). The Sewel convention only provides that UK legislation affecting devolved matters should ‘normally’ require devolved consent, of course, and there’s a question of what constitutes an ‘abnormal’ circumstance here. But that has to be more than inconvenience to the UK Government. In my view, it would have to be something of fundamental importance to the survival of the United Kingdom as a state, and probably therefore something so urgent that it was not practicable to obtain devolved consent (rather than a case where the devolved legislature refused its consent). As I’ve said in my earlier posts, seeking to over-rule devolved wishes as expressed under the convention is a profoundly dangerous step.
A dangerous step
When he gave evidence to the Commons Scottish Affairs Committee on 16 February, Michael Moore made a hugely important comment about the Sewel convention as it applies to the Scotland Bill. Up to now, his position has been quite clear; the Bill needed the formal and explicit consent of the Scottish Parliament. In front of the committee, the Secretary of State said that, if the Scottish Parliament was to seek to alter “fundamental” aspects of the Bill in a way that was not compatible with the UK Government’s wishes, it would retain the right to ignore Holyrood’s wishes.
There are grounds for serious concern about both the substance of the proposals set out in the Scotland Bill, and the processes that have given rise to it. But important as those are, the Sewel convention is even more important. The convention ensures that devolved functions cannot be interfered with, existing ones removed or new ones added, without the Scottish Parliament’s consent. It is irrelevant whether those are “fundamental” to the UK’s policy intentions or not.
The convention is the foundation on which a system of devolution rather than federalism rests, as it squares the circle between a clear division of power set out in a written constitution and then set in stone, and the principle of the sovereign UK parliament conferring legislative powers on other legislatures. It rebuts Enoch Powell’s claim that “power devolved is power retained”, and makes devolution a viable alternative for a country with an unwritten constitution.
Even threatening to overturn the UK Government’s commitment to the Sewel convention to get the Scotland Bill through is a very dangerous step for any minister to take.
Michael Moore would be well advised to confirm that the convention applies in full to the Bill, unless he wishes to tear up the whole constitutional basis of devolution.