Labour should commit to both the letter and the spirit of the Sewel convention

The new government has begun to make progress with its busy legislative programme. The King’s Speech outlined plans for at least 40 bills including its flagship Great British Energy and Renters’ Rights bills. At least 15 are likely to affect devolved matters and so will require consent from at least one of Edinburgh, Cardiff and Belfast under the ‘Sewel convention’.

As the government proceeds with its ambitious policy agenda, our case studies highlight the importance of respecting the autonomy of the devolved bodies, to make a reality of its promise to ‘reset relations’ with its devolved counterparts. 

Sewel is a cornerstone of the devolution settlements

The Sewel convention holds that the UK parliament “will not normally legislate with regard to devolved matters except with the agreement of the devolved legislature.” ¹³ HM Government, Memorandum of Understanding and Supplementary Agreements Between the United Kingdom Government, the Scottish Ministers, the Welsh Ministers, and the Northern Ireland Executive Committee [The Memorandum of Understanding], 2013, https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/316157/MoU_between_the_UK_and_the_Devolved_Administra….  As a constitutional convention, it is not legally binding. Westminster remains sovereign, able to pass bills without devolved consent when it believes this to be necessary.

For Sewel to function, therefore, remains reliant on trust, communication, and compromise. And, for over two decades, it mostly worked smoothly. The three devolved legislatures granted consent to over 200 acts of parliament between 1999 and 2019, only withholding consent on nine occasions, with most of these disagreements resolved via amendments at Westminster.  

The convention is designed to protect devolved autonomy and to facilitate smoother intergovernmental relations, by giving devolved governments a voice on UK legislation.  It also provides a way to introduce consistent UK-wide laws where there is policy agreement between the UK and devolved governments. ¹⁴ Paun A and Shuttleworth K, Legislating by consent, Institute for Government, 2020, p. 11.Paun A and Shuttleworth K, Legislating by consent, Institute for Government, 2020, p. 11.

In the past five years, Westminster has repeatedly legislated without consent

After 20 years of smooth operation, however, the 2019-24 parliament saw the Sewel convention come under unprecedented strain, with devolved legislatures voting to withhold consent from 19 UK acts.  Most notably this included the European Union (Withdrawal Agreement) Act, the only piece of legislation that every devolved legislature has withheld consent for.

While legislating without consent may have been necessary in some cases, such as to avoid a damaging ‘no-deal Brexit’ in 2020, the increased breaches of the convention speaks to a deterioration in relationships and reflects a more ‘muscular’ approach to managing the union taken by Westminster in that period. 

The Conservative governments formed since 2019 were markedly less concerned about passing legislation without consent, even when Whitehall’s own legal assessment confirmed that consent should be sought. The UK Internal Market Act exemplified this; every single section of the bill was accepted as relating to devolved matters but the legislation was passed despite opposition from the devolved institutions. 

This has undermined faith in the devolved capitals that Sewel functions as intended.  This distrust evidences a breakdown in relations, meaning that the background intergovernmental discussions needed for Sewel to function may be less fruitful. 
A particular challenge arises when there is disagreement over whether a bill relates to devolved matters, and therefore whether Sewel even applies. The Illegal Migration Act and Genetic Precision Breeding Act highlight that there are no avenues for devolved governments to dispute UK government decisions: what the UK government unilaterally declares to be reserved is treated as reserved. 

Labour should commit to respect the Sewel convention and enhance its status 

Of the 40 bills announced in the King’s Speech, at least 32 are expected to apply to one or more of the devolved nations, and at least 15 are expected to require devolved consent. An early example is the Great British Energy bill – for which Scotland and Wales have both submitted initial legislative consent memorandums. These state their intentions to submit supplementary legislative consent memorandums with recommendations once the UK government provides further details. ¹⁸ See Scottish Government, ‘Legislative Consent Memorandum: Great British Energy Bill’, August 2024, retrieved 2 September 2024, https://www.parliament.scot/-/media/files/legislation/bills/lcms/great-british-energy-bill/legislative-consent-memorandum.pdf, and Welsh Government, ‘Legislative Consent: Great British Energy Bill’, 8 August 2024, retrieved 2 September 2024, https://business.senedd.wales/mgIssueHistoryHome.aspx?IId=44266.   

Improved Whitehall practice is needed to reset relations between the UK and devolved governments. Labour’s manifesto promised to strengthen Sewel by agreeing a new memorandum of understanding with the devolved governments. ¹⁹ Labour Party, ‘Change: Labour Party Manifesto 2024’, June 2024, p. 109.  This should set out clear expectations and obligations for both the UK and devolved governments, including in relation to early consultation when legislation is being developed and to resolution of disputes. 

There are examples of good practice. The Coronavirus Act 2020 was drafted and passed consensually between all four governments. The UK Infrastructure Bank Act shows how compromise by ministers can lead to consent being granted, even when the UK and devolved governments initially disagree about elements of the legislation.

There is also a case for reformed parliamentary procedure. For instance, the IfG has previously recommended that ministers should lay a ‘devolution statement’ alongside bills, setting out whether and why consent has been sought, and detailing any pre-legislative engagement with devolved governments. This statement should be referred to a parliamentary committee to report on devolution and consent issues, including unresolved disagreements.  And where ministers wish to proceed with legislation without consent, MPs and peers should vote on the explicit question of whether to legislate without consent. ²⁰ Paun A and Shuttleworth K, Legislating by consent, Institute for Government, 2020, p. 3.  

More radical solutions, such as making Sewel legally binding, have been suggested by the Independent Commission on the Constitutional Future of Wales and the Brown Commission. However, with Labour seemingly uninterested in bigger constitutional reforms, the question for now is how the government can breathe new life into Sewel within a broadly unchanged constitutional framework.