6 December 2016

Sewel: no "constitutional safeguard", just a "self-denying ordinance..."

By any reckoning, Richard Keen QC is an uncommonly political lawyer. Former Dean of the Faculty of Advocates, and now the UK government's chief adviser on Scots law, Ruth Davidson appointed him chairman of the Scottish Tories in 2013. While in office, he reportedly summoned the party's MSPs to his "small castle", and subjected them all to a dressing down for being useless. Some disgruntled parliamentarian, ungrateful for this advice, leaked the encounter to the media. This interlude seemed to do his political career no harm. When David Cameron secured his majority in 2015, and the Liberal Democrats were ejected from government, Keen took up Jim Wallace's vacant office of Advocate General for Scotland.

In that position, Keen appeared before the UK Supreme Court this morning, to speak to the devolved aspects of the ongoing Brexit case. We substantially knew what the Advocate General proposed to argue from his written argument, but the Justices afforded him an hour to expand on his points. We may hear from him again, in reply, after the Lord Advocate has made his submissions on behalf of the Scottish Government on Wednesday. 

Keen's message to the Justices was characteristically trenchant and forthright -- but you have to wonder whether it was politically wise. Keen's argument is essentially a simple one. Parliament is sovereign. Nothing in the devolution settlements changes that. Indeed, the Scotland Act specifically recognises that Westminster retains competence over foreign affairs, including EU negotiations. It also retains power to legislate concerning devolved matters. Parliament is sovereign. It can make or unmake any law: the Scotland Act is no exception.  

Where this gets controversial, however, is when we turn to the so-called "Sewel convention". Since 1998, Westminster has recognised that it will not legislate for devolved matters without the consent of Holyrood. What do we mean by devolved matters? Generally, this has been understood as (a) passing legislation which falls within Holyrood's powers, or (b) changing the legislative competence of Holyrood by adding or subtracting from its authority, by devolving more powers, or re-reserving powers which were once reserved. 

But this convention gave Holyrood very limited legal protection. In states with codified and entrenched constitutions, the central government does not have the power to abolish regional parliaments, or to intrude on their competencies. The courts would block any attempt to do so. Some people wondered: why should Scotland be any different? Shouldn't the permanence and privileges of Holyrood also receive some legal protection?

In the wake of the 2014 independence referendum, the Smith Commission report agreed that"the Scottish Parliament will be made permanent in UK legislation" and that the Sewel convention should be "put on a statutory footing". Both of these commitments were reflected in sections one and two of the 2016 Scotland Act.  But did these "constitutional protections" really make much difference? In the political domain, David Mundell and his colleagues made much of these concessions. The statutory recognition of Sewel and Holyrood's permanence were important, they said, meaningful.

That claim lies in ruins this afternoon, after Richard Keen's Supreme Court submissions. So what did he say? Characterising this statutory recognition of the convention as "a self-denying ordinance", Keen continued, it was only "a political restriction upon Parliament's ability to act, no more and no less than that" and in no sense any "qualification or inhibition upon parliamentary sovereignty."

This is all very well and good, you might well think, before 2016. From 1999 - 2016, Sewel was just a political convention. You didn't find it in any law. But surely the Scotland Act must make some kind of difference? Surely there was some point in including Sewel in the 2016 Act? If there wasn't, if the idea Westminster will not "normally legislate for devolved matters without consent" is just empty words, just hot political air, then why the devil did MPs do it? 

The same thought struck Lord Sumption during the hearing. "But it cannot be described as a purely political force once it is enacted in a statute?" he asked. "Do you submit its incorporation as an Act of Parliament makes no difference to its legal effect?" he wondered.

Richard Keen's answer was consistent with the orthodox logic of his submission - but it remains politically stark. Yes, he said. The statutory recognition of Sewel is of no legal significance whatever. "The correct legal position", he concluded, is that Westminster "is sovereign, and may legislate at any time on any matter."As Graeme Cowie observed in the comments at the end of my last blog, "anyone paying even the most superficial of attention knew sections 1 and 2 of the Scotland Act 2016 were weasel words."

That may be true of constitutional scholars like Graeme. But for ordinary folk who followed the passage of the Scotland Act through Westminster and Holyrood, who listened to David Mundell's defence of its provisions -- Richard Keen's uncompromising submissions today may come as something of an unwelcome surprise.


  1. No surprise. Anyone who listened to the Committee stage of the HoL debate on the Scotland Bill will have heard the Govt time and again reassure their Lordships that the principle of parliamentary sovereignty was not in danger.
    The legal question is whether the Scotland Act allows Holyrood a say on the Art 50 issue (and that comes down to a) whether the royal perogative extends to Scotland in this case (1689 argument) and, b) if it does not, whether the Sewell convention applies - depending on the definition of 'normally'. Thereafter, it's a political question of whether WM chooses to exercise its powers under the Scotland Act(s) to override Holyrood. My guess - if it comes to that - is that it will. To make a point. To challenge Nicola Sturgeon into holding indyref2 before she wishes to. To make sure the UK Brexits as a whole....

  2. This lay viewer was somewhat taken aback by Eadie's casual and workaday exposition that parliament can take away any and all rights of citizens or residents any time it pleases.

    You rarely see such thuggish natures of our 'constitution' laid out so baldly. My feed kept dropping out so I may have missed him qualifying that by noting we are signed up to lots of things which require us not to do so which would at the very least cause some difficulties in implementation.

    As for Keen, you are correct, his assertions will be remembered by this Yes campaigner. I will doubtless not be called upon to cite it on every doorstep conversation but when the discussion makes it germane I damn well will do so.

    Thankyou Lord Keen for this ammunition against continued membership of the UK, I shall husband it well.

  3. Richard Keen QC is an uncommonly political lawyer? Yes because he is a much a mad unionist as any sash wearing lager lout screaming FTP, banging his drum on the glorious 12.
    Its just he is better groomed but make no mistake just as arrogant.

    1. Yeah. Trying to put my impartial hat on, I quite liked Eadie, he just presented his case. Keen would rub me up the wrong way, he came across as smarmy and arrogant at the same time, telling the judges what to think and what to do. No idea if personality makes a difference to the judges.

    2. This comment has been removed by the author.

    3. Did I read you in the Irish Times yes ref 2?

  4. Kenyon Wright's letter to Gordon Brown
    Canon Kenyon Wright
    February/March 2014

    Dear Gordon,

    Your 6 point plan for a new settlement between Westminster and Scotland marks a qualitative change in the debate, but it raises some questions for all who, like me, have yet to be fully convinced by either side.

    It is of course a positive change from the “politics of fear” that have been so depressing, but there is a much more important way in which, if I understand you aright, you are saying things we are not hearing from anyone else.

    You will remember that the Constitutional Convention showed they were talking of something beyond mere devolution, when you and I, with many others,  lined up to sign the “Claim of Right for Scotland” which acknowledged the sovereign right of the Scottish people in constitutional matters.

    We built on that Claim when we declared “We are adamant that the powers of the Scottish Parliament must be entrenched so that they cannot be altered without the consent of the Parliament representing the people of Scotland”.

    The Vision was clear, articulated by the Kirk’s Church and Nation Committee in 1989

    “It is not possible to resolve the question of the democratic control of Scottish affairs apart from a fundamental shift in our constitutional thinking away from the notion of the unlimited or absolute sovereignty of the British Parliament towards the historic and reformed constitutional principle of limited or relative sovereignty”.

    Both the Claim of sovereignty, and the strenuous effort to entrench the new Parliament, proved ultimately impossible without that “fundamental shift”, a  real radical reformation of the UK’s constitutional foundation.

    I have grave concerns that your proposals, and even more those of the Labour Party Commission,  fall short of these ideals.

    Anything I have heard from the Unionist side so far has always been in terms of more “devolution.”, but there are two problems with that.
    First, devolution, however “Max or Plus”, leaves the relationship between Scotland and Westminster basically unchanged.

    As Enoch Powell reminded us, “Power devolved is power retained” It would always be power tentatively handed down by grace and favour, not of right.

    It goes deeper.  Devolution of any degree, leaves the UK’s system of parliamentary sovereignty fundamentally unreformed and unchanged.

    In the Constitutional Convention that delivered the Scottish Parliament, I recall Malcolm Bruce, then Liberal Democrat leader in Scotland, saying “Devolution is Dead”

    Donald Dewar spoke of “independence in the UK” .

    Yet the Liberal Democrat commission, and even the inconsistent and incoherent commission report just produced by Labour, join the chorus about “devolution”, not the basic change you seem to me to propose.

    Your 2nd proposal – “a constitutional guarantee of the permanence of the Scottish Parliament” – can only constitutionally only be achieved by radical change in the UK’s Governing principles, as the Convention’s experience taught us the hard way.

    Are you saying that the “new UK Constitutional law” you propose would achieve that?

    As people come to decide on Yes or No, they will need the information now, to compare the clear prospects offered by both sides.

    I therefore believe it to beimportant that you give us the answer to 2 questions?

    First, are you really and seriously proposing changes that would radically and permanently transform the UK Constitution, and therefore the relationship between Scotland and the UK Government, ensuring that Scotland’s autonomy is secure?

    Second, what realistic prospect is there that this, rather than various degrees of devolution, will be presented to the people as a unified and l firmly promised alternative to independence?
    With best wishes,

  5. Wait and see what the 11 say in January. Their view maybe different to Keen's.

    1. The whole tortuous debate around the Scotland Bill 2016, and the SNP's desperate attempts to amend it succeeded only in firmly re-establishing Westminster's ultimate sovereignty. The Scotland Act is quite clear about that. The only question is whether WM will be required to assert that sovereignty in the teeth of Holyrood, or whether it can just go ahead with Brexit without even asking...

  6. Don't mention the Claim of Right...

  7. So not only has "The Vow" been shown up to be a lie, but their implementation of it has also been admitted publically by Lord Keene to be a sham, and in the Supreme Court too.

    The foul stench of treachery hangs like a fetid dead beast for all to witness.

  8. I skimmed the draft, but it seems to me that though a bumbler, the judges liked Eadie. Keen is just plain ruthless, no regards for political consequences. The UK Parl can change the Scotland Act whenever it likes, is supreme overall, Sewel is nothing, shut up and eat your cereal. He quotes the judges themselves, targets them in fact. He also used Aidan O'Neill essays against him, and it's a shame O'Neill doesn't get to reply orally. That's inequitable.

    But he does do selective quoting, a typical Unionist trait. E.g. in Schedule 5 he quotes where the EU is reserved, but does not quote the exception that follows.

    "(2)Sub-paragraph (1) does not reserve—

    (a)observing and implementing international obligations, obligations under the Human Rights Convention and obligations under [F7EU] law,

    (b)assisting Ministers of the Crown in relation to any matter to which that sub-paragraph applies."

    Neither, however, does he address that - surely a deliberate hole in his argument? After that he seems to be quite assertive and argumentative, and that perhaps is a weakness that can be exploited by the Lord Advocate.

    1. I don't think it's a hole or weakness - that sub-paragraph places the duty fulfilment of obligations (and how that is done) on Holyrood, but doesn't grant any powers over the obligations themselves.
      And, anyway, if, and when, the EU goes away, so do the concomitant obligations.

    2. I'm a little surprised he didn't cover that for the sake of completeness, from a different point of view to put in context about the 2016 Scotland Act where he said in the HoL: "The Smith agreement was explicit in its reference to putting the Sewel convention on a statutory footing, and that is what has been done—essentially as the noble Lord, Lord Stephen, noted—in a declaratory sense."

      But in fairness to Keen, Eadie had time to develop his arguments whereas Keen had to rush his a bit, as he pointed out himself.

      I guess it remains to be seen how much the judges even consider the Sewell convention.

      All very interesting stuff. Perhaps the judges will want in January to address every single point, and try to reach a concensus to wrap it all up. Good luck with that!

  9. Richard Keen confuses me. Everyone says he's a formidable intellect. Brain the size of a planet, they declare. An extremely smart cookie. Well what the hell was he doing for his money at Camp Zeist in 1999-2001?

    He was Lamin Fhimah's lead advocate. He's particularly known for demolishing Prof Christopher Peel's Mach Stem calculations about the position of the explosion. Prof Peel was left abjectly apologising to the court for the errors in his sums, protesting that he hadn't intended to mislead the court. So how did that play out?

    It didn't. The investigators knew where the explosion happened because it's self-evident from the pattern of damage to the baggage container. Peel's original calculations simply put the explosion where it obviously was. The "right" answer to the Mach Stem calculations apparently places the explosion outside the baggage container. But it wasn't outside the container, it was inside it. The judges, not being complete idiots, noted this point and ignored the entire episode.

    Keen didn't figure out there was an error in Peel's sums on his own. Someone set him up with the ammunition he fired in court. Someone was presumably right that Peel had made a mistake, given Peel's apology, but nevertheless the new answer wasn't right either. Keen didn't have any come-back to the observation that any fool could see that the explosion was inside the container. What a waste of time and effort.

    Then, at the end, he pulled an interesting legal trick. He separated Fhimah from Megrahi. The two were originally charged with conspiracy to commit the atrocity. Keen said, you have no evidence against my client (in effect, there was no proof that Fhimah had even been at the airport in Malta on the morning the bomb was alleged to have been put on board a plane there), so whatever Megrahi may have done, just leave him out of it. This caused the original indictment to be changed, dropping the conspiracy libel, and allowing the eventual split verdict. How the hell Megrahi could have got the bomb on board without Fhimah's help is left as an exercise for the reader.

    The point is, Keen got his client off by landing Megrahi right in it. And we all know what happened after that. Well, wasn't that really really clever of Mr brain-the-size-of-a-planet Keen?

    Not really. The thing is, there was evidence right there in the hands of the defence which proved that both Megrahi and Fhimah were absolutely innocent. It only needed someone with a bit of reasoning ability to figure it out. Now Bill Taylor, Megrahi's lead counsel, is widely regarded as not being the sharpest knife in the drawer and whoever thought he was a good choice as defence advocate in that case needs to be taken out and shot. But Bill Taylor probably wasn't bright enough to get it.

    But Richard Keen should have been. It's far far less difficult than working out Mach Stem calculations. And yet he missed it completely. So, either he was right out of his depth doing criminal defence work when his usual thing was company law or something like that, in which case we're back to which 24-carat moron thought it was a good idea to engage him in the first place, or.

    Which side was he actually batting for? Really, really good outcome for the Crown Office and the Scottish legal profession in general. Which it wouldn't have been if someone in either defence team had been able to count up to seven.

    Still, £3000 a day, I was told. No wonder he has a small castle.

  10. So here's a question, countries have Treaties and Conventions. If Eadie is arguing FOR a Treaty for RP over an Act, but Keen is arguing AGAINST a Convention (Sewel) having any value, what in international terms is the difference between a Convention which signators normally follow, and a Treaty which signators normally observe, whether ratified or not? And is a Convention only a Convention if it's an International one?

    Could it be that, in a way, Keen is arguing against Eadie? Or could Wolffe put his arguments in a way that when Keen replies tomorrow, he has a choice of putting Wolffe in his place - or Eadie?

  11. Be advised to take a long spoon if invited to supper at his small castle.

  12. So, to justify 28(8) being meaningless (political), Keen has said:

    "The Smith Commission was a political commission between all the political parties in Scotland. Lord Smith produced a report and the Government undertook to implement the recommendations in the report in the Scotland Bill 2016, and it did so virtually line by line. So it was the expression of a political agreement within statutory form, and that is why I would respectfully suggest it is rather unusual in that context."

    But if Smith was a political commission, then either all parts that were put into legislation are statutory, or they might be political. But there's nothing political about this to my mind:

    Smith 22: "The Sewel Convention will be put on a statutory footing"

    Therefore, it is, on a statutory footing.

  13. You can just tell by "that" photo the guy is a Tory........

  14. If you can't see what Keen is and who he works for then you're thick as fuck. Souped up Donald Findlay.

  15. And, on 24, January, 7 weeks after your article, the Supreme Court agrees with Mr Keen!!!!

    So, it is down to the politics have enough of us got the bottle?

  16. The Scottish Parliament should, being one of the two signituries of the treaty of the union of Parliaments, rescind the treaty as the articales of the treaty has been altered out of all recognition from the original by Westminsterec.

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