In my last posting I argued that the Tory government's flagship policy to repeal the Human Rights Act and amend the European Convention on Human Rights will probably hit the Scottish rocks. Now I want to look at the Sewel Convention which pretty much ensures that only tears lie ahead for the Tories and their wicked schemes.
The Scotland Act 1998 was steered through the House of Lords by Lord Sewel, and as part of the debate he gave an assurance that "we would expect a convention to be established that Westminster would not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish parliament."
Although never formally part of the devolution package, this Sewel Convention as it came to be known has been accepted by all governments since the act came into being in 1998. The aim was to reassure Scottish nationalists that their newly minted parliament would not be abolished, but the convention has turned out to be useful in other ways as well. For instance if Westminster passes a bill that comes within Hoyrood's remit, the Scottish legislature can then pass a motion giving consent to Westminster passing the legislation on their behalf. It frees up time in Holyrood and has come in handy on more than one occasion when the Scottish politicians want to pass the buck for a policy down the road to Westminster.
Now the Sewel Convention stands slap bang in the middle of the Tory plans to amend human rights legislation for the whole country. If the Tories persist with this legislation they are first of all going to have to overcome the Sewel Convention. Obviously the Scottish government will call in the lawyers and at the same time start screaming that the wicked Tories are out to renege on the whole devolution settlement. I doubt if that is actually the plan to be honest, but that won't stop the SNP saying it - and people believing it to be true.
The constitutional implications for all this are immense, because nobody honestly knows where the powers of Westminster end and those of Holyrood start within the context of the devolution settlement. To make matters worse, as each new tranche of powers are handed over to Edinburgh, the position becomes even murkier.
It is true that Westminster is supreme, but that supremacy operates under the law, and if one law conflicts with another then the courts have to sort out the mess.
By bringing forward legislation that was only put in the manifesto to please the readers of the Daily Mail, the Tories have created a rod for their own rumps. It is hardly Scotland's fault if they all ending up having to sit down very gingerly when this is all over.