So... About that Significant World Event that Happened...

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Re: So... About that Significant World Event that Happened..

Postby Master Gunner » 28 Jun 2016, 19:38

My understanding of the Scotland Acts and The Sewel Convention is that Westminster retains absolute sovereignty over Parliamentary matters in the UK, including the (technical) ability to override the devolved legislatures.

Notably, Section 28 (Acts of the Scottish Parliament) of the Scotland Act 1998 reads "This section does not affect the power of the Parliament of the United Kingdom to make laws for Scotland." The 2016 Act amends this, but only to add "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."
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Re: So... About that Significant World Event that Happened..

Postby Arclight_Dynamo » 28 Jun 2016, 20:52

Ah. That's not quite what I understood by "constitutional convention." Conventions are, specifically, unwritten constitutional rules that have the force of law. That portion of the Scotland Act isn't the same thing.
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Re: So... About that Significant World Event that Happened..

Postby Master Gunner » 29 Jun 2016, 05:36

My understanding of "constitutional convention" was that the unwritten rules specifically don't have the force of law, just immense political pressure to apply. For example, the Governor General only acting "on the advice" of the Prime Minister - almost unthinkable for the GG to act independently, but legally there's nothing stopping them from doing so (see Australia 1975).

In the case of Scotland, the "Sewel Convention" refers to statements made by Lord Sewel on behalf of the UK government during the passage of the 1998 act that despite the language of the bill specifically allowing it, the understanding would be that Westminster would not legislate on devolved matters without consent.
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Re: So... About that Significant World Event that Happened..

Postby Arclight_Dynamo » 29 Jun 2016, 09:42

Well... yes and no. That's the hell of a convention - they have the force of law... until they don't. Also, there are conventions, and then there are conventions.

Canadian examples:

The entire office of the Prime Minister in Canada is a convention (I believe that's the case in the UK, too, but that may have changed since they've started to write things down in recent years). It's not written down anywhere in the constitution. So while, in the strictest technical sense, there's nothing binding Parliament to having a PM in charge of the executive as part of responsible government, there is a zero percent chance that they'd try it. And a zero percent chance that it would fly if they tried. You really can't find a stronger convention, and I would argue it has the same force as if it were written law.

On the other hand, remember the prorogation crises under Stephen Harper? Those involved the convention that the government cannot prorogue Parliament in order to avoid a confidence vote. Until it happened, it was true that governments couldn't do that; now, though, the convention no longer exists. It's an odd way to think about it, but until the crises, that convention had the force of law. But now it doesn't. Mostly, anyway. There are still people (myself among them) who insist that the prorogations were unconstitutional, the GG erred in allowing them, and that the convention still stands as law.

It's murky, is what I'm saying.

So, in the case of Scotland, what we seem to have is a weak convention and a piece of legislation that doesn't explicitly violate the convention, but does explicitly allow Westminster to violate it.

Which, in my estimation, doesn't mean Scotland is unable to block the invocation of Article 50 so much as it means Westminster will try to invoke, based on the Scotland Act, and Holyrood will try to block, based on the convention.

And what we end up with is constitutional crisis, that will need to be resolved in some way. And, given the specific facts here, I don't think it's possible to predict which way it would go.
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Re: So... About that Significant World Event that Happened..

Postby My pseudonym is Ix » 29 Jun 2016, 13:25

Arclight- not only is the office of Prime Minister a convention (and, fun fact, his official title is actually 'First Lord of the Treasury'), so is the idea of a cabinet.

On the subject of weird things with British politics- members of parliament are not actually allowed to resign. They are only allowed to leave office by being fired, dying, promotion to the House of Lords or promotion to some other paying role in government. Therefore, any MP wishing to resign has to apply for one of two completely fictitious 'Bailiff' positions, which are only theoretically paid.

This isn't related, I'm just easily distracted.
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Re: So... About that Significant World Event that Happened..

Postby Lord Chrusher » 29 Jun 2016, 14:41

If you are easily distracted by politics, this past week will not have been productive.
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