I will come to that in a moment because normally I would come to “normally” when I am addressing “normally”, and that is when I will address the noble Lord, Lord Cormack. I would not want him to feel out of this.
The Smith commission agreement stated:
“The Sewel Convention will be put on a statutory footing”.
That is precisely what Clause 2 achieves. Let us step back for a moment to the Sewel convention. What did Lord Sewel say? He said that,
“we would expect a convention to be established that Westminster would not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish parliament”.—[Official Report, 21/7/98; col. 791.]
Of course, the word “normally” was important. I will come back to that because it is a word that respects the sovereignty of the United Kingdom Parliament. Without it, you might have had a provision that intruded very materially on the sovereignty of that Parliament. That was what was said at the time in 1998.
The noble Lord, Lord Norton, observes that that is not a convention in the conventional sense; and, of course, he is right because a convention is something that grows up and is invariably applied or employed. Where you have the word “normally”, you are saying that there can be a qualification or an exception, so,
strictly speaking, in constitutional terms, the Sewel convention is not a convention. But, you know, by convention it became a convention. And that is where we are. Over a period of years, what was referred to as the Sewel convention was understood not only by the United Kingdom Parliament but also by the Scottish Government and by the Civil Service. They understood and applied the Sewel convention, albeit that in strict constitutional terms it was not a convention. They operated it successfully and without difficulty until now. Then the Smith commission decided that the Sewel convention should be put on a statutory footing. Of course, the technical difficulty is this: if you express a convention in statutory terms, it ceases to be a convention.
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In a sense, we do not have that problem here because, as the noble Lord, Lord Norton, pointed out, it was not a convention in the first place. But let us avoid those technicalities and potential difficulties. It was understood to be a convention and it was decided that it would be expressed in statutory terms and put on a statutory footing. Therefore, it would in a strict sense cease to be a convention. But what was understood to be the Sewel convention when the Smith commission was meeting and determining this matter was the convention that the United Kingdom Parliament would not normally legislate in respect of devolved matters. That was the beginning and end of what was understood by the convention.
Is there any difficulty about that? Not really. The noble Lord, Lord Stephen, referred to various working documents employed by the Civil Service, such as Devolution Guidance Note 10, which is not a document that was ever approved by any House of this Parliament but was developed by the Civil Service for the application and operation of what was understood by the Civil Service and everyone else to be the Sewel convention. Behind that stood a memorandum of understanding. The noble Lord, Lord Stephen, referred to a memorandum of understanding being entered into in 1999. The memorandum of understanding was entered into between the United Kingdom Government and the Scottish Ministers. It also included the Welsh Ministers and the Northern Ireland Executive Committee, as it then was. But it was not entered into just in 1999; it went through seven different iterations or editions. Indeed, the memorandum of understanding was last agreed to by these parties in October 2013.
What did the United Kingdom Government and the Scottish Ministers understand was meant by the Sewel convention? Paragraph 14 of the memorandum of understanding says:
“The United Kingdom Parliament retains authority to legislate on any issue, whether devolved or not”.
That is important, of course, because it restates the sovereignty of our Parliament. It goes on:
“It is ultimately for Parliament to decide what use to make of that power”.
Again, it restates the sovereignty of our Parliament. It continues:
“However, the UK Government will proceed in accordance with the convention that the UK Parliament would not normally legislate with regard to devolved matters except with the agreement of the devolved legislature”.
That is what the parties understood in October 2013, as well as in 1999. Indeed, it goes on to say:
“The United Kingdom Parliament retains the absolute right to debate, enquire into or make representations about devolved matters. It is ultimately for Parliament to decide what use to make of that power, but the UK Government will encourage the UK Parliament to bear in mind the primary responsibility of devolved legislatures and administrations in these fields”,
and so it goes on.
There is no difficulty in understanding what the United Kingdom Government, the Scottish Ministers and everyone else understood was meant by the Sewel convention, not only in October 2013 but when the Smith commission report was issued in 2015. That was the scope of the convention that the Smith commission recommended should be put on a statutory footing—not Civil Service working notes, not DGN 10 and not further requirements.