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May Advocate 2017

THE ADVOCATE V O L . 7 5 P A R T 3 M A Y 2 0 1 7 373 sion to withdraw from the European Union”.22 Rather, the court considers the case to raise two important issues of law relating to the UK’s constitutional arrangements: the extent to which ministers may change domestic law by exercising their prerogative powers at the international level, and the relationships between the UK government, Parliament and the devolved legislatures.23 POLITICAL CONVENTIONS The devolution issues in Miller are also of interest in the Canadian context, as the issue required the court to consider the enforceability of a political convention: pursuant to the Sewel Convention, the UK Parliament will not normally exercise its right to legislate with regard to matters that fall within or alter the legislative competence of the devolved legislatures without their agreement. It was argued that the UK’s withdrawal from the EU would do just that.24 In finding that the Sewel Convention gave rise to no legally enforceable obligation, the court quotes at length from the Supreme Court of Canada’s judgment in Re: Resolution to amend the Constitution concerning the role of courts in relation to constitutional conventions.25 The UK Supreme Court eloquently describes the judiciary’s role with respect to political conventions this way: Judges therefore are neither the parents nor the guardians of political conventions; they are merely observers. As such, they can recognise the operation of a political convention in the context of deciding a legal question … but they cannot give legal rulings on its operation or scope, because those matters are determined within the political world.26 The court rejects the argument that by recognizing the Sewel Convention in statute, Parliament intended to convert the convention “into a rule which can be interpreted, let alone enforced, by the courts”.27 (While perhaps obvious, the majority notes that Parliament does have this capacity: “We would have expected UK Parliament to have used other words if it were seeking to convert a convention into a legal rule justiciable by the courts”.)28 In concluding that the Sewel Convention was a political rather than legal restriction on Parliament, the majority was careful to emphasize that they do not underestimate the importance of constitutional conventions, some of which play a fundamental role in the operation of our constitution. The Sewel Convention has an important role in facilitating harmonious relationships between the UK Parliament and the devolved legislatures. But the policing of its scope and the manner of its operation does not lie within the constitutional remit of the judiciary, which is to protect the rule of law.29


May Advocate 2017
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