As we all remember, a key part of the panic-stricken last-minute "Vow" that helped to secure a narrow No victory in the independence referendum was the promise that the devolved Scottish Parliament would be made "permanent". Implicit in that pledge was that the Sewel Convention (which, among other things, prevents the powers of the parliament from being altered without the consent of MSPs) would be put on a statutory footing. Without that safeguard, "permanence" would plainly be meaningless - the parliament could be left as an empty shell, unilaterally stripped by Westminster of all or most of its powers.
It was widely noted that, technically, it was next to impossible to guarantee either the permanence of the parliament or the inviolability of the Sewel Convention, because the sovereignty of the Westminster parliament means that any constitutional law can simply be repealed later on. Nevertheless, the UK government insisted that the Scotland Act 2016 provided as much assurance as was humanly possible to give within the UK constitutional framework.
A number of us were a tad sceptical about that, and couldn't help wondering whether the use of weird and seemingly redundant wording within the legislation such as "it is recognised that" and "the UK Parliament will not normally legislate without consent" were deliberately intended to be self-sabotaging, and to render the whole thing unenforceable. Not at all, we were told. That was just paranoia. Yet more SNP grudge and grievance.
Hmmm. As it turns out, all it's taken is eight months since the Scotland Act passed into law, and the UK government are already openly admitting that we were correct in each and every respect about the cynical game they were playing. So desperate are they now to head off the risk of the Supreme Court granting the Scottish Parliament the kind of say over the Brexit negotiations that might actually befit "the most powerful devolved parliament in the world" (ahem), they've dropped all the former pretence, and have submitted a legal argument that explicitly argues that the wording of the relevant section of the Scotland Act deprives it of all credibility.
"The legal irrelevance of the Sewel convention is expressly accepted"
"the convention does not purport to prescribe an absolute rule. Its content is only that “Westminster would not normally legislate” (emphasis added). 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..."
"Nothing in that analysis is affected by the amendment of s. 28 of the Scotland Act 1998 (by s. 2 of the Scotland Act 2016) to include: “(8) But it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament”. All s. 28(8) does is to recognise the terms of the political convention in legislation. That does not render the application of it in any particular instance a justiciable matter for the courts. It is trite that legislation may include provisions which do not give rise to justiciable legal issues. The content of s. 28(8) is the same as that of the convention, save that its purely political nature is further emphasised by (a) the opening wording that it is “recognised”, and (b) its placement immediately after s. 28(7) which affirms the unconstrained legislative competence of the Westminster Parliament."
In plain language, this is a boast that the supposed placing of the Sewel Convention on a statutory footing was a con-trick. Further, it's an invitation to the Supreme Court to confirm that the deception was pulled off successfully. That whole section of the Scotland Act, we're being told, was the equivalent of a pretty illustration in a textbook - ie. for decorative effect only. At best, it was like forgoing a marriage certificate in favour of a small tattoo saying "Jenny and Kevin 4eva".
The eccentric notion that the government which crafted the law, and not the courts, should get to decide how to interpret the meaning of the word "normally" reminds me a touch of the Führerprinzip in Nazi Germany (ie. the government's word is above the written law), or the right of the communist Chinese National People's Congress to interpret the Hong Kong Basic Law. The rule of law in democratic countries does generally rest on a basic separation of powers - the political legislature passes the law, and then the non-political courts interpret and enforce it. That is the only way of ensuring non-arbitrary application of the law. Apparently, Westminster's exercise of overlordship in Scotland is exempt from that general principle.
The UK government's lawyers could have saved themselves a lot of time by submitting a legal argument that simply read : "OUR CONTEMPT FOR THE PEOPLE OF SCOTLAND IS ABSOLUTE. WE LIED, WE CHEATED, AND WE NO LONGER CARE WHO KNOWS ABOUT IT. SUCK IT UP, JOCKS."