Lord Advocate debates status of Sewel with Supreme Court Justices

The Lord Advocate has asked judges in the Brexit case the reason for enshrining the Sewel Convention in law if it were not to become a “provision that the courts can address”.

Speaking before a full bench of the Supreme Court yesterday, James Wolffe QC argued the case for the Scottish government that Holyrood, as well as Westminster, must be consulted before Article 50 is triggered.

The debate turned on the interpretation of the Scotland Act 1998 s.28(8) and the question whether enshrining the Sewel convention in the legislation made it a rule of law or merely preserved it as a convention to prevent it from “slipping away by desuetude”.

Subsection 8 states: “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.”

Lord Mance said: “conventions are incredibly important, but they are not legally binding. That is their nature.”

The Lord Advocate responded: “Indeed, and what I can also say is that the United Kingdom Parliament decided that this convention should be enacted into statute and I might put my Lord’s question — perhaps answer it with what it would be impertinent to suggest is anything other than a rhetorical question, which is, what was the point in enshrining this in law if it doesn’t become a provision that the courts can address.”

However, Lord Hodge noted that the provision can be interpreted merely as a

means of “preventing the convention from slipping away by desuetude or a change of practice, it is a recognition that this a convention that is to apply. That doesn’t make the convention a rule of law. It is merely recognising it as something that is fixed, as a convention.”

Mr Wolffe responded: “I would put it this way, my Lord, that, as a provision and an Act of Parliament, it is part of the law of the land. What its effect and interpretation are matters upon which the court may properly adjudicate.”

The court is due to sit until 4.00pm today when the hearing will end and judgment will be reserved.