Sewel Convention

Debate between Stewart Malcolm McDonald and Joanna Cherry

Monday 18th June 2018 Commons Chamber

[Joanna Cherry (Edinburgh South West) (SNP)]

I got the impression over the weekend that Government Members and the metropolitan commentariat were rather surprised at the strength of feeling displayed by SNP MPs last week at the pitiful amount of time that was allowed for debate of these matters, but they should be in no doubt that that strength of feeling is felt across Scotland. On the flight home and in my constituency at the weekend, I was inundated by members of the public congratulating us on taking the stance that we did. In douce, undemonstrative Edinburgh, I was unable to get my messages done in Marks & Spencer at Slateford for people coming up to me wanting to shake my hand and tooting their car horns, shouting out that we had done the right thing.

Lest it be thought, then, that this is only about what we individual SNP Members think, I want to devote what little time I have to some of the views held by members of the Scottish commentariat, Scottish civic society and a prominent Scottish constitutional lawyer. The position was neatly summed up at the weekend by the distinguished journalist and commentator Kevin McKenna, who is not afraid to criticise my party when he does not agree with it, when he wrote in The Observer at the weekend:

“The UK government has sought to portray the SNP’s anger over the power grab as illusory to the point of non-existent. ‘The 24 powers will eventually make their way to Holyrood, so what’s the problem?’ they ask. The problem is threefold.”

First:

“It could take up to seven years for these powers to return, a period that would outlast a term of government on either side of the border.”

Secondly:

“At any time, during this period the UK government could alter them as they see fit.”

Thirdly and perhaps most importantly:

“A precedent has also been set allowing any UK government to override the Sewel convention by which Westminster won’t legislate on devolved competencies without Holyrood’s permission.”

That is not my view but the view of Mr McKenna.

The Sewel convention provides that Westminster will “not normally” legislate on a devolved matter without devolved consent. I am afraid that an awful lot of nonsense has been talked about what the word “normally” means. Fortunately, the House need not take my word for it; Aileen McHarg, professor of public law at the University of Strathclyde, very helpfully set out at the weekend some of her views on what “not normally” meant. She says it does not mean:

“Goodness me, this situation is a bit unusual; we can therefore ignore the usual constitutional rules.”

It does not mean, she says: “I say”,

“it’s jolly difficult if we have to agree stuff with”

the Scots and

“the devolved institutions; let’s just ignore them.”

Nor does “not normally” mean, she says:

“So long as we make some kind of effort to reach agreement (even if it’s a bit late and we have to be forced into it), it doesn’t matter if we can’t actually reach agreement.”

What “not normally” means is as follows. The Sewel convention is a rule, not merely a description of practice, so the word “normally” has to be understood as an exception to the rule. According to the principles of legal interpretation, we make exceptions to a rule either where the underlying rationale for the rule does not apply or where there is some overriding competing principle.

The rationale for the Sewel convention is protection of devolved autonomy. It is not clear to me or Professor McHarg why the protection of devolution should be suspended by the Brexit vote, particularly when Scots did not vote for Brexit by a majority of two to one. Professor McHarg concludes, on the basis of what few precedents there are, and of the discussions at the time of the enactment of the Scotland Act and in relation to the old Stormont convention, that devolved consent can be overridden only in cases of necessity or where the devolved legislature is abusing its power. There is no evidence that the devolved legislature is abusing its power, and, in order to have frameworks, there is no necessity for those frameworks to be imposed from above.

[Stewart Malcolm McDonald]

Given what my hon. and learned Friend has just informed the Chamber of, could not the Executive in London be accused of abusing their power?

[Joanna Cherry]

Indeed. It is the Executive in London who are abusing their power. In the words of the BBC’s “Reality Check” website, the Sewel convention was “ripped up” and thrown away by last week’s amendments.

I will conclude with a word of warning for the Tories from another commentator, Dani Garavelli, who wrote in The Guardian:

“As for ordinary voters, they may not be greatly exercised about the finer points of the constitution… But they can hear the mood music; they know when their parliament is being slighted. Already frustrated over the democratic deficit that allows Scotland to be taken out of the EU when every part of the country voted remain, many of them will look askance at the dismissive way Conservative politicians behaved in the chamber on Wednesday.”

In relation to displays of anger from me and others last week, she says that such anger

“will be echoed around much of the country. Anyone who doesn’t understand the potential impact of such condescension on the psyche of Scottish voters wasn’t paying enough attention last time around.”

I look forward to putting pictures of their jeering faces on the leaflets at the next independence referendum.