1 December 2016

"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. 

19 comments :

  1. Nicola has set this up well, either the UK government has to listen to her arguments and allow Scotland to retain membership, or most likely it chooses to ignore it and prove to No voters just how small a voice Scotland has, perfectly timed for an IndyRef2

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  2. "... whether circumstances are ‘normal’ is a quintessential matter of political judgment for the Westminster Parliament and not the courts..."

    Westminster making judgements on "normality"?

    It's not an organisation I would have immediately credited with that ability.

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  3. Where stands "the most powerful devolved legislature in the world" in the face of HM Government's submission to the Supreme Court?

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  4. Supercilious, ill-tempered, rude. strident, haughty - not Richard Keen surely?

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    1. Considering the number of comments from QCs about that, perhaps the UK Gov want to lose the case.

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  5. I note they refer to the Bill of Rights 1688 but ignore the Claim of Right 1689. My understanding is that the English Parliament dissolved whilst the Scottish adjourned. By dissolving does that not make all previous legislation dissolve with it, thereby requiring new acts of the parliament to bring them into effect? How does this operate in practice?

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  6. Anyone paying even the most superficial of attention knew sections 1 and 2 of the Scotland Act 2016 were weasewords. The real deceit here is the void that has been permitted to emerge under the British constitution post devolution of legal and political sovereignties incoherently diverging.

    Both sides were guilty of exaggerating and playing politics with those parts of the Act. I remember the SNP complaining the original bill didn't make the Scottish Parliament permanent then proposing an amendment that didn't just not make it permanent but which created an explicit condition, later adopted in the bill, for its abolition, then complained when the government voted it down.

    This is a world of raw power politics. It should come as no surprise that s2 is protective in name only.

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    1. "I remember the SNP complaining the original bill didn't make the Scottish Parliament permanent then proposing an amendment that didn't just not make it permanent but which created an explicit condition, later adopted in the bill, for its abolition, then complained when the government voted it down."

      The SNP's condition was the following:

      "(1A) The Scottish Parliament is a permanent part of the United Kingdom’s constitution.
      (1B) Subsection (1) or (1A) may be repealed only if—
      (a) the Scottish Parliament has consented to the proposed repeal, and
      (b) a referendum has been held in Scotland on the proposed repeal and a majority of those voting at the referendum have consented to it."

      What you call "playing politics" I call ensuring that the only way the Scottish Parliament could possibly be abolished is through the mandate of the Scottish people, actively involving them in a choice involving the abolition of their own Parliament.

      This is entirely consistent with the notion of the people, not the Parliament, of Scotland being sovereign.

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  7. I'm extremely familiar with Richard Keen in an entirely different context. Now, in the light of his behaviour at Camp Zeist and his subsequent career path, I seriously wonder which side he was batting for in 1999-2001.

    He made a big play of destroying prosecution witnesses in areas where this didn't do a blind bit of good for either accused, completely failed to notice absolutely exculpatory evidence that was right under his nose and would have proved the factual innocence of both accused, and in the end got his client off by what amounted to legal trickery, in such a way that he landed his client's co-accused right in it.

    He's supposed to have a brain the size of a planet. He demolished Christopher Peel with some complicated rebuttal of Peel's Mach stem calculations that I frankly don't understand, and yet he didn't notice that the condition of Charles McKee's suitcase absolutely obviously showed that the bomb suitcase wasn't where the Crown forensic witnesses said it had been and that its real position completely absolved both accused. Really?

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  8. I agree with Mike above. If we get ignored and belittled it will help the Independence.

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  9. When Keen was appointed Advocate General in 2015 I did a bit of research on him in my customary manner, and was delighted at what I saw. This was no Jim Wallace, Keen has his views and is outspoken about them, even if against his own party - of which he was chairman! He has since of course been replaced in that role.

    The thing is that he takes no prisoners, and with him and Wolffe the chances of issues being argued are far greater, and perhaps at last many of the uncertainties - at least as far as the UKSC are concerned - will be clarified. And it's good that all 11 Judges are involved rather than a subset of them, as that makes it as "definitive" as you can get, in the UK at least.

    Whatever way it goes, having ignorance removed is a good thing, it's time in Scotland we all know exactly where we stand. Constitutionally at least, because like it or not, it's the Constitution of the UK is on "trial" here.

    Now off to read his submission :-)

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  10. (from the supplemental case) 2. "... the DC was right to conclude that points arising from or in relation to the devolution legislation, or from Scots law, add nothing material to the issues in this appeal. "

    Straight away I disagree, that's not what it said in the judgement. What it DID effectively say was that these weren't needed in reaching the judgement, and therefore weren't addressed - which is totally different. I think I'm right from memory, my link to the judgement gives "not found".

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    1. Sorry me again. IANAL but have read both for business and personal reason some submissions in the past, and judgements where available online. What I noticed in the past is that the first and last is the most interesting as the first attempts to direct the proceedings, and the last perhaps gives the reason why.

      In this case the UK Gov really really really does not want to go near the Scotland Act, the Act of Union - or the Claim of Right, or anything to do with "Scots Law". So it seeks to remove them from consideration.

      Don't panic Mr Mainwaring!

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    2. Sorry, an afterthought. Beware concentrating solely on Sewell - that could be the purpose of the "supercilious and ill-tempered" bit.

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    3. You are quite correct. They were not needed in reaching the judgement and therefore were not addressed.

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  11. By attempting to invoke Royal Prerogative in this case the Government may have inadvertently given a hint as to how the Sewel Convention may be enforced. Withholding of Royal Assent is a Royal Prerogative. Advice an use of the Royal Prerogative is given to the First Minister on devolved matters. I don't know how public that advice can be. Certainly in practice most interventions in devolved matters can subsequently be reversed so Sturgeon telling the Queen she shouldn't bother signing off on something might be seen as a friendly suggestion.

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  12. Any chance of a run down of proceedings? I.e. we have submissions and the attorney general get the last word, but there's now a counter submission from the ag to the la. When does the la get the chance to counter the ag's counter submission?

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  13. I'm afraid some of this just confirms my worst suspicions of the legal system. Gosh, what an exciting spectacle is about to unfold: destroying witnesses, taking no prisoners, demolishing, brain the size of a peanut, why it's just like Hitchhiker's. What fun. And what about justice, seeking after "truth", equity, reasoned argument and equity and so on - after all isn't there an issue about democracy hiding in there somewhere. Oh, go to hell, much better to see someone with an ego the size of a planet. The UK system stinks.

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