The Sewel Convention has been broken by Brexit – reform is now urgent

The Welsh Assembly has now joined the Northern Ireland Assembly and the Scottish Parliament in refusing consent for the Withdrawal Agreement Bill (WAB) – the legislation need to implement the government’s Brexit deal. The situation is unprecedented; never have all three devolved legislatures refused consent to the same piece of legislation.

While the Sewel Convention states that the UK Parliament will ‘not normally’ legislate on devolved matters without the consent of the devolved legislatures, the Sewel Convention is just that – a convention with no legal force. Parliamentary sovereignty means that the UK Parliament can legally proceed with the WAB regardless – and if the government wants to leave the EU at the end of the month then it will need to do so. But this would see it passing one of the most significant pieces of constitutional legislation in UK history despite the expressed objections of three out of four of the UK’s constituent parts. Whatever the arguments put forward, this would not be a good look – and will not go down well in Cardiff Bay, Stormont and Holyrood.

The Sewel Convention has been a fundamental underpinning of the relationship between the four legislatures of the UK since 1999, but it has been broken by Brexit. As well as managing the immediate political backlash that will follow the passing of the WAB, the UK government must now seriously engage with the case for reforming the convention if it wants to ensure the sustainability of the union in the long term.

The Sewel Convention was working well until the UK voted for Brexit

Until 2016, the Sewel Convention largely operated with remarkably little controversy – of the 350 times legislative consent has been sought, it has been denied partly or in full on only nine occasions. Devolved engagement on UK legislation has usually begun at an early stage, private conversations have helped to address problems and, if necessary, the threat of withholding consent has allowed the devolved administrations to extract concessions.

But this approach requires trust, compromise and good and open communication, all of which have been in increasingly short supply since the 2016 EU referendum. Brexit has exposed the vulnerability of the devolution settlements against a UK parliamentary majority. The devolved administrations have accused the UK government of taking major Brexit decisions on a unilateral basis and failing to take account the majority remain vote in Scotland and Northern Ireland – and their objections have fallen on deaf ears.

Tensions reached boiling point when both the Scottish and Welsh governments recommended against giving consent for the EU Withdrawal Act 2018, the legislation which copied EU law into UK law. After negotiations and a number of serious concessions, the Welsh Assembly eventually supported the bill. The Scottish Parliament did not, but the UK government proceeded regardless. Since then, the Scottish government has been on ‘Sewel Strike’, refusing to consent to any Brexit-related bills aside from in exceptional circumstances – claiming the UK government’s decision had ‘effectively suspended’ the convention.

The devolved administrations are testing the limits of the Sewel Convention

Following the fall-out from the EU Withdrawal Act, the devolved administrations (DAs) are also testing the limits of the convention.

Consent is only required for certain clauses of the Withdrawal Agreement Bill, such as those which give powers to devolved ministers to implement the agreement or establish new bodies in which the DAs would have a role. But, fundamentally, the devolved administrations’ objections relate to the Withdrawal Agreement itself.

International negotiations and agreements are matters reserved exclusively for the UK government, as the brexit secretary pointed out in letters to his counterparts in the Scottish and Welsh governments. The UK government has also set out its view that the “devolution settlements did not intend for the devolved administrations to be able to frustrate the UK government’s exercise of reserved powers”. Legally, the UK government may be right, but politically it will be difficult to refute the inevitable claims that Westminster is simply disregarding clearly expressed opinions of the devolved nations.

Relationships between the governments of the UK need to be repaired – and the Sewel Convention should be reformed

Once the Withdrawal Agreement Bill is on the statute book, the UK government’s immediate task is to manage the political fall-out. The longer-term challenge is to think carefully about how to restore trust between the four governments of the UK.

Ensuring that there is a meaningful and systematic engagement with the DAs throughout the next phase of Brexit negotiations would be a wise move. Legislation will be needed to implement any new deal, and as any deal will have implications for devolved areas like health and agriculture it will likely require legislative consent. The UK government could find itself facing the exact same situation.

Of course, the government could keep pushing legislation through regardless of the opinions of the devolved nations, but this is not a sustainable strategy either politically or practically – the devolved administrations will also need to implement new trade deals in devolved areas.

Reform of the Sewel Convention is also imperative. Both the Scottish and Welsh governments have put forward substantive proposals, such as making the convention legally enforceable or adding a stage to consider the views of the devolved administrations when Westminster passes legislation, but so far Westminster has been reluctant to engage. Recent events have clearly demonstrated that the Sewel Convention is broken. Work to fix it should begin immediately.