When Michael Moore, the Scottish Secretary, gave evidence to the Commons Scottish Affairs Committee last week, he largely played a straight bat and avoided giving much away. But late in the session (which is still recycling periodically on the BBC Parliament channel), he made two pretty startling statements.
One was to announce that the UK Government wouldn’t necessarily respect the Sewel Convention if the Scottish Parliament requested ‘fundamental’ changes to the Scotland bill – say, increasing the devolved income tax power from 10 points to 15 – which the UK Government didn’t wish to make. Rather, it would push the bill through regardless.
This is startling because the Sewel Convention is the foundation on which devolution rests. The Convention provides that the UK Parliament will not legislate for devolved matters without the consent of the devolved legislature involved. While there’s an ambiguity about how it affects the UK Parliament, the UK Government has clearly committed itself to the Convention in the Memorandum of Understanding. The Convention is a powerful and ingenious constitutional tool, which squares the circle between a division of power set out in a written constitution and then set in stone, as in most federal systems, 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. The saving clause in it (it talks of the UK Government ‘normally’ complying with devolved wishes should only be used in the direst of emergencies – not a case where there’s a serious constitutional disagreement between the Scottish Parliament and UK Government over the nature of devolved powers.
Moore’s other statement relates to clause 23 of the Scotland bill, a curious provision that enables UK Ministers to act regarding devolved matters if that is to fulfil a UK international obligation. The Command paper explaining the bill offered no clear rationale for this. The trigger turns out to be two cases where the Scottish Government took a year longer than the UK Government to implement agreements concerning two minor organisations ancillary to the European Union. But the Memorandum of Understanding protects the UK Government from any financial liability (it’s passed on to the devolved administrations), and the UK already has power to implement EU obligations anyway. It’s now clear that this clause is much wider than is needed to deal with any harm the UK can suffer.