Iain Jamieson: Interpretation of the Sewel Convention, the Purpose Test and the Immigration Bill
It is at present uncertain whether the Sewel convention, which has now been put on a statutory footing by s. 2 of the Scotland Act 2016, will fall to be interpreted by a court in the same way as any other statutory provision (see my earlier post here). It is therefore opportune to consider how it might be interpreted.
In their article on the Immigration Bill, Reserved Matters and the Sewel Convention, Tom Mullen and Sarah Craig take an interesting approach to the interpretation of the Sewel convention and the purpose text in s. 29(3) of the Scotland Act 1998 ("SA 1998") in relation to it.
The authors consider that the consent of the Scottish Parliament should have been sought under the Sewel convention to clause 44 of the Immigration Bill. They accept that it would not have been competent for the Scottish Parliament to have enacted clause 44 because its dominant purpose relates to the reserved matter of immigration control. Nevertheless, they argue that the Sewel convention should have applied to it because it has a devolved purpose to amend the law of landlord and tenant in Scotland and it will have a substantial effect upon that devolved matter.
I do not agree with the view taken by the authors about clause 44. And I also consider that it would be constitutionally inappropriate to extend the application of the Sewel convention, as the authors suggest, to require the consent of the Scottish Parliament to a provision in a UK Bill which relates to a reserved matter but which also can be said to have a devolved purpose or which has a substantial effect upon devolved matters.
The interpretation of the Sewel convention
The Sewel convention, as it is now enshrined in s.28(8) of the SA 1998 (as inserted by s.2 of the SA 2016), provides that the UK Parliament "will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament".
There is no definition in that subsection, or elsewhere in the SA 1998, of what is meant by a "devolved matter". But, in this context, it is generally understood to mean a matter which is within the legislative competence of the Scottish Parliament ("devolved competence"). It is, therefore, not just a matter which is not a reserved matter because that would not take into account the other provisions in the SA 1998 which would render a provision in an ASP outside devolved competence.
Nor is there any definition of what is meant by "with regard to a devolved matter". But, having regard to the above definition of a devolved matter, it might be helpful, when considering whether a UK Bill makes provision "with regard to" a matter within devolved competence, to turn that question around and consider whether it would be within devolved competence for the Scottish Parliament to make such provision. If it would be, then the Sewel convention will be triggered; if it would not be, then the convention will not bite.
The Sewel convention may, therefore, be said to operate as a mirror-image of the way in which a provision in an ASP is within devolved competence. An ASP is permitted by paragraph 3 of Schedule 4 to the SA 1998, when making provision which does not relate to a reserved matter, to make modifications to the law on reserved matters which
"(a) are incidental to, or consequential on, provision made … which does not relate to reserved matters, and (b) do not have a greater effect on reserved matters than is necessary to give effect to the purpose of the provision."
In a similar way, a UK Bill, which makes provision for a reserved matter, may be said to be able to make similar modifications to the law on devolved matters without triggering the Sewel convention. This is because it would be outside devolved competence for the Scottish Parliament to make such modifications for that reserved purpose. And it would follow that, if the UK Bill contains provisions which make modifications of that law which are greater than what is permitted, then the Sewel convention will bite so as to require the consent of the Scottish Parliament to those provisions because they would no longer relate to the reserved matter.
This approach has the advantage of providing what appears to be a very simple test for the application of the Sewel convention.
These interpretations would accord with-
a. the original purpose of the Sewel convention which was to mitigate the declaration of Parliamentary sovereignty in section 28(7) of the SA 1998 by saying, in effect, that, even although the UK Parliament can legislate with regard to matters within the competence of the Scottish Parliament, it will not normally do so without the consent of that Parliament. It was also intended to avoid the legislative ping pong between the UK and Scottish Parliaments which might otherwise have happened; and
b. Rule 98(1) of the Standing Orders of the Scottish Parliament (4th edn, 9th revision, 30 October 2015) which describes a UK Bill which requires the consent of the Scottish Parliament under this part of the Sewel convention as a Bill which "makes provision … applying to Scotland for any purpose within the legislative competence of the Parliament…."
However, the authors do not approach the application of the Sewel convention in this way. They do not refer to, nor seek to interpret or apply, the actual words of the Sewel convention. Instead, they have regard to DGN 10 in order to determine whether the Sewel convention applies to clause 44.
DGN 10 is a note by the UK Government giving guidance to UK Departments as to when the UK Government considers that the convention applies to a UK Bill. In doing so, it gives a simplified gloss upon what was considered to be meant by the expression "with regard to a devolved matter" without expressly stating that this is what it was doing. DGN 10 can create its own interpretative problems. It makes clear that the convention does not apply where a UK Bill relates to a reserved matter but contains provisions "which make incidental or consequential changes to Scots law on non-reserved matters (i.e. which are for reserved rather than devolved purposes)." But it also states that it does apply where a UK Bill contains provisions which are for "devolved purposes" which is a new expression but which, in its context, would appear to mean provisions which relate to devolved or "non-reserved matters" or, more correctly, to use the words in Rule 98(1) of the Standing Orders, provisions for a purpose which is within the legislative competence of the Scottish Parliament.
DGN 10 would, therefore, accord with the interpretation of the Sewel convention suggested above. However, now that the Sewel convention has been put into statute, it would be preferable to approach the question of the application of the Sewel convention by interpreting the words used in that statutory provision.
The authors argue that clause 44 relates to a reserved matter but that it also has a devolved purpose and has substantial effects upon a devolved matter which are more than purely incidental or consequential upon the reserved matter. This leads the authors to conclude that DGN 10 is deficient because it
"does not address the situation where a Bill relates to reserved matters and so is outside the competence of the SP, but also has major effects on devolved areas of law and policy, or where a Bill has multiple purposes, some of which are devolved and others reserved."
I think that this criticism of DGN 10 and, by implication, the application of the Sewel convention, is misplaced but, before dealing with that, it is necessary to consider whether the authors are correct in the views which they put forward about clause 44.
Clause 44 of the Immigration Bill
The purpose of the residential tenancies provisions in clauses 41-43 of the Immigration Bill, which apply only to English tenancies, is to restrict the access of illegal immigrants to residential tenancies. This is a matter related to the reserved matter of immigration control. Clause 44 authorises regulations to be made which would extend those provisions to the devolved areas. Those regulations would be able to amend the law of landlord and tenant in Scotland, which is a devolved matter, by making it a criminal offence for a landlord to knowingly allow the landlord's premises to be occupied by "an adult who is disqualified as a result of their immigration status from occupying premises under a residential tenancy agreement" and by empowering the landlord to evict such a person.
Applying the interpretation of the Sewel convention which has been suggested above, the question to be determined is whether, if clause 44 had been a provision in an ASP, it would be within the legislative competence of the Scottish Parliament.
In doing so, one of the questions to be considered is whether clause 44 would relate to a reserved matter in terms of s. 29(2)(b). In accordance with section 29(3), this question falls to be determined by reference to "the purpose of the provision, having regard (among other things) to its effect in all the circumstances."
In applying s. 29(3), the authors state-
"Clearly, the purpose of [Clause 44] relates to the reserved matter of immigration control, but the question of competence cannot be decided by reference to purpose alone. Regard must also be had (among other things) to their effects. The effects of these provisions will be felt in the field of landlord and tenant law….. These effects might also be described in terms of purpose, i.e. that the purpose of the measure is to change the rights and obligations of landlords and tenants in Scots law. On that view, the provisions would have two purposes."
In other words, the authors take the view that s. 29(3) means that the question whether clause 44 relates to a reserved matter cannot simply be determined by reference to its purpose but that, after ascertaining its purpose, it is then necessary to take into account, as a separate matter, its effects and those effects can also be described as a purpose of that provision.
This seems to be an unusual interpretation of s.29(3) because its grammatical structure suggests that it is the purpose of a provision which is to be ascertained, having regard (among other things) to its effect in all the circumstances. This appears to be the way in which Lord Hope read that section when he stated in Martin v Most 2010 UKSC 10, at para 25 -
"Section 29(3) of the Scotland Act provides that, when consideration is being given to the "purpose" of the provision, regard is to be had to its effect 'in all the circumstances'".
Clearly the regulations under clause 44 will have an effect upon the law of landlord and tenant in Scotland but, even having regard to those effects, it is clear that the purpose of clause 44, and of the regulations to be made under it, is to extend the residential tenancy provisions in clauses 41-43 to residential tenancies in Scotland in the same way as they apply to English residential tenancies. This clearly relates to the reserved matter of immigration control.
But that is not the end of the matter because it is necessary to consider whether provisions to be made by those regulations, which will affect the law on that devolved matter, are "incidental" to, or "consequential" on, that reserved matter and will have no greater effect on that devolved matter than is necessary to give effect to the purpose of the reserved matter (to borrow the wording of para 3(1)(b) of Sch 4 to the SA 1998).
The authors consider that the regulations will have a substantial effect upon that devolved matter which is more than merely incidental or consequential but they give no reasons for that view.
It may be that they have in mind Lord Rodger's (obiter) comment in Martin v Most (at paras 91 and 92) that incidental and consequential modifications would be purely "minor and technical" and "the kinds of relatively minor modifications which are often to be found in schedules, rather than cluttering up the body of a traditional United Kingdom statute." However, Lord Rodger appears to be taking an extremely narrow view of the provisions which can be incidental or consequential. The concept of an incidental or consequential provision describes a relationship with something else to which it is incidental or consequential, which, in this case, is the reserved purpose. It does not describe the provision itself or the significance of the effects which it might have. In other words, they are not necessarily only of a "minor and technical significance. This can be easily established by looking at the kind of incidental or consequential modifications which are usually made after some Act is enacted which can be very important in their own right. See, for example, the Scotland Act 1998 (Consequential Modifications)( No 1) Order 1999 (S.1.1999/1042) which make a number of substantial amendments which are consequential upon that Act.
The regulations under clause 44 are essential in order to achieve the UK Government's policy of restricting the access of illegal immigrants to residential tenancies throughout the UK. They will do no more than provide for Scotland what clauses 41-43 will do for England.
On this analysis, it is difficult to avoid the conclusions that the purpose of clause 44 would clearly be for that reserved matter; that there would not appear to be any other purpose to that clause; and that their effect on the devolved law of landlord and tenant, even if substantial, is no more than purely incidental to, and consequential upon that purpose and will have no greater effect than is necessary to give effect to the purpose of those provisions.
Extending the Sewel convention
The authors argue that the Sewel convention should be extended so as to require the consent of the Scottish Parliament normally to be obtained to a provision in a UK Bill, even although it relates to a reserved matter, where it also has a devolved purpose and has substantial effects upon a devolved matter.
A court has yet to find established that there is such a thing as a provision in a UK Bill or in an ASP which can, simultaneously, be said to have two purposes, one of which relates to a reserved matter and the other to a non -reserved matter.
However, in Martin v Most (at para 86), Lord Rodger gave a hypothetical example of a provision in a Bill for an ASP which might be intended to change the system of accommodation of homeless persons in Scotland (a devolved matter), and simultaneously to alter the treatment of asylum seekers (a reserved matter). Assuming this to be a possible example of a provision with dual purposes, Lord Reed, in Imperial Tobacco v HMA [2012] CSIH at para 124 did not express any view upon the argument that, in such a case, it was necessary to find the dominant purpose but Lord Hope went further and opined (obiter) that
"… the fact that one of its purposes relates to a reserved matter will mean that the provision is outside competence, unless the purpose can be regarded as consequential and thus of no real significance when regard is had to what the provision overall seeks to achieve." ([2012] UKSC 61 at para 43)
Accordingly, if there could be such a provision in a UK Bill which relates to a reserved matter but simultaneously also has a devolved purpose (which is more than incidental or consequential), then, on Lord Hope's view, the Sewel convention would not be triggered because it would be outside devolved competence.
Nevertheless, this is precisely one of the circumstances in which the authors suggest that the Sewel convention ought to be extended to apply. However, if that was the case, the Scottish Parliament would, in effect, be asked for their consent to the whole provision, even although one of its purposes relates to a reserved matter.
The authors also suggest that Sewel convention ought to be extended to apply to require the consent of the Scottish Parliament to a provision in a UK Bill which only relates to a reserved matter but which has substantial effects upon devolved matters
Both these propositions are clearly constitutionally inappropriate. The Scottish Parliament has no power or responsibility over reserved matters and it would therefore be inappropriate to invite that Parliament to consent to provisions in a UK Bill which are outside its competence, even although those provisions might be said to have a devolved purpose or to have substantial effects upon devolved matters. This is particularly so when it is considered what would happen if the Scottish Parliament were to refuse to consent to such a provision.
It has yet to be established what would be the position if the Scottish Parliament withheld their consent to a provision in a UK Bill under the Sewel convention now that it has been enshrined in statute (see my earlier post here). But, even if that refusal does not operate as a legal veto limiting the legislative competence of the UK Parliament, it is likely to create very considerable political controversy which could even lead to the provision in question being amended or deleted.
It is unfortunate, of course, that UK policy on reserved matters does make substantial inroads into devolved matters but these are matters which should be properly consulted upon under the usual machinery of inter-governmental relations. So, if a provision in a UK Bill does have a dual purpose or substantial effects upon a devolved matter, it should be expected that the UK Government would consult the Scottish Government about such matters both before and during the Bill's progress through the UK Parliament and they in turn might consult the Scottish Parliament upon them.
But this is an entirely different matter from inviting the consent of the Scottish Parliament to such a provision under the Sewel convention. That cannot be constitutionally appropriate because, as Lord Rodger said in relation to his hypothetical example,
"Parliament cannot have intended to remove from the United Kingdom government the power to take all the necessary decisions on asylum matters." (Martin v Most at para 87)
Iain Jamieson is a retired UK and Scottish Government lawyer. He headed a small team of lawyers who instructed the drafting of the Scotland Act 1998.
Tom Mullen and Sarah Craig: The Immigration Act 2016, Reserved Matters and the Sewel Convention: a Reply
https://www.freemovement.org.uk/brett-briefing-implications-scotland/
http://blogs.sps.ed.ac.uk/europablogsite/article-3455