Wednesday 7 December 2016

Who are these Scottish gentlemen?

Followers of the UK government's appeal in the Brexit case will have seen that two Scots lawyers are also involved.

On Tuesday 6th December, the court heard from the Advocate-General for Scotland (Lord Keen of Elie QC).   The Advocate General for Scotland is a Minister of the Crown and is one of the three UK Law Officers. Along with the Attorney General and the Solicitor General for England and Wales, the Advocate General provides legal advice to all UK Government Departments on a wide range of issues including human rights, European law and constitutional law. The Advocate General is the UK Government’s principal legal adviser on Scots law and its senior representative within the Scottish legal community.

Today (7th December), the court will hear from the Lord Advocate for Scotland - Mr James Wolffe QC who represents the Scottish government.  He is the Chief Legal Adviser to the Scottish government and is the Chief Public Prosecutor for Scotland.  The office of Lord Advocate dates back to the 15th century and during its history many distinguished lawyers have held the post.

One of the elements in the Scottish legal submissions concerns the "Sewel Convention."  This has been placed on a statutory footing by the Scotland Act 2016 section 2.  

In section 28 of the Scotland Act 1998 (Acts of the Scottish Parliament) at the end add -

“(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.”

Has putting the convention into statutory form made any legal difference?   This exchange between Lord Sumption and Lord Keen is instructive:

LORD SUMPTION: Do you submit that its incorporation in an act of Parliament makes no legal difference to its effect?

THE ADVOCATE GENERAL FOR SCOTLAND: I do, my Lord, yes, and it was made perfectly clear during the passage of the Scotland Act 2016 that the intention was simply to incorporate in statutory form the existing convention and no more than that, and indeed there were attempts both by the --in the House of Commons and in the House Lords to amend the proposed clause 2 in order to extend it to incorporate aspects of the practical operation of the convention, and those amendments did not proceed.

THE PRESIDENT: Surely if it is a convention,it must be questionable -- if it is a parliamentary convention, it may be questionable whether the courts can rule on it.  Once it is statutory, then it is plain that we can.  

THE ADVOCATE GENERAL FOR SCOTLAND: You can look at its interpretation

THE PRESIDENT: Indeed we have to.

So, from the viewpoint of the UK government, Section 2 of the Scotland Act 2016 has effected no change whatsoever.  It is seen as a "self- denying ordinance" and of no legal effect.   For more detail as to how the government views the Sewel Convention in the context of the appeal see Printed case of the Secretary of State for Exiting the EU

For an interesting view from a Scots Lawyer please read this post by Lallands Peat Worrier - Sewel: no "constitutional safeguard", just a "self-denying ordinance ..."

Here is a transcript of the proceedings in the Supreme Court on 6th December.

If the good people of Arbroath are following the case, the view as expressed by Lord Keen may not be too well received!  How the Supreme Court will view the matter remains to be seen. 

Footnote:  The Declaration of Arbroath 1320

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