Brexit and the Sewel (legislative consent) Convention

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Does Brexit need devolved consent?

On 15 May 2018, the Scottish Parliament and Welsh Assembly voted on whether to provide consent to the EU Withdrawal Bill. Why were these votes required?

In 2017, the UK Supreme Court ruled that the devolved legislatures had no “legal veto on the United Kingdom’s withdrawal from the European Union”.

However, the UK Government accepted that legislation to implement Brexit does require devolved agreement under the ‘legislative consent convention’, because it changes the powers of the devolved bodies.

This includes the EU Withdrawal Bill, which transposes EU legislation into UK domestic law, and the Trade Bill, which gives the UK Government powers to implement future trade deals.

The planned bills on agriculture and fisheries are also expected to fall within the scope of the consent convention.

Legislative consent motions (LCMs) on the EU Withdrawal Bill were voted on in the Scottish Parliament and Welsh Assembly on Tuesday 15 May.

The Welsh Assembly voted to provide consent, following  agreement between the Welsh and UK Governments on the bill.

The Scottish Government, however, remain opposed to the terms of the bill, and in particular to the provisions of clause 15 (formerly clause 11), which would enable Westminster to temporarily freeze devolved powers in some areas currently subject to EU law.

The Scottish Parliament, with support from all parties except the Scottish Conservatives, voted to withhold consent.

What is the legislative consent (Sewel) convention?

Devolution to Scotland, Wales, and Northern Ireland did not change the fact that the UK Parliament is sovereign and can change the law in devolved areas.

However, ever since 1999, UK Governments have followed a convention that Westminster does not usually interfere in devolved areas without agreement from the devolved legislatures.

The convention states that the UK Parliament “will not normally legislate with regard to devolved matters without the consent” of the devolved parliaments. It applies when legislation:

  • changes the law in a devolved area of competence
  • alters the legislative competence of a devolved legislature
  • alters the executive competence of devolved ministers.

Is the legislative consent convention binding?

The legislative consent convention, also called the Sewel Convention after the minister who outlined it in 1998, was placed in law in the Scotland Act 2016 and the Wales Act 2017.

These acts “recognise” the convention, but do not formally limit the power of the UK Parliament.

The Supreme Court ruled, in 2017, that since Sewel remains just a political convention, “policing the scope and manner of its operation does not lie within the constitutional remit of the judiciary”.

This means the devolved governments cannot turn to the courts to enforce the legislative consent convention.

However, while the convention does not provide a legal veto power for the devolved bodies, it possesses significant political influence.

The convention has been followed hundreds of times since 1999 and it has become a central part of how the UK and devolved legislatures interact.

How does the legislative consent convention work in practice?

The convention operates through a system of legislative consent motions and memorandums.

The Standing Orders of the devolved legislatures in Cardiff, Edinburgh and Belfast state that a legislative consent memorandum should be prepared if the UK Government publishes a bill with provisions falling within the scope of the Sewel Convention.

The legislative consent memorandum sets out the bill’s objectives, the reasons why consent is required, and usually indicates whether and why the devolved government believes consent should be given.

Before a bill reaches its final amending stage in the UK Parliament, the devolved legislatures then vote on a legislative consent motion to either grant or refuse consent for the bill.

How often are legislative consent motions used?

There have been 340 legislative consent motions voted on since 1999: 173 in Scotland, 79 in Northern Ireland and 88 in Wales.

In the vast majority of cases, these motions have granted unconditional consent to the Westminster bills in question, which have often related to areas such as policing and justice, economic regulation and local government.

The absence of controversy about most consent motions reflects the fact that the UK Government normally liaises privately with the devolved governments before a bill is published, to ensure that any concerns are dealt with early on.

Many legislative consent motions also relate to technical issues that are logically dealt with on a UK-wide basis. For instance, devolved legislatures gave consent for the Criminal Finances Act 2017, which legislated for the recovery of criminal proceeds.

But on a handful of occasions, bills have been denied consent, either in part or in full.

This first happened in February 2011, when the Welsh Assembly voted against giving consent to the Police Reform and Social Responsibility Bill. The Senedd has since declined to give legislative consent a further six times.

Before the current crisis, the Scottish Parliament’s only previous vote to deny legislative consent was on aspects of the Welfare Reform Bill in 2011.

Likewise, the Northern Ireland Assembly has refused consent only once, on the Enterprise Bill in 2015.

On other occasions, the threat of a denial of consent has led the UK Government to amend legislation, or make other concessions, in order to secure devolved agreement.

What happens if the UK and devolved governments cannot agree on the EU Withdrawal Bill?

The EU Withdrawal Bill has not yet completed its passage through the UK Parliament. The bill could therefore be further amended at Westminster to meet Scottish concerns, and the Scottish Parliament could then reconsider and grant consent after all.

This happened when Scottish consent was withheld for the 2011 Welfare Reform Bill.

However, this would require the UK Government to concede that Westminster cannot impose new constraints on the exercise of devolved powers without Scottish agreement. The Government has so far refused to accept this, fearing the potential for post-Brexit regulatory uncertainty for business.

If agreement cannot be reached, then the UK Government might decide to press ahead with the legislation against the expressed position of the Scottish Parliament. This would be unprecedented and contentious, but it is almost certainly legally possible.

Is the UK Supreme Court going to rule on the question of devolved consent for Brexit?

In parallel to the dispute over the EU Withdrawal Bill, the Supreme Court is preparing to rule on the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill passed by the Scottish Parliament in March.

This bill provides for the retention of EU law in Scotland. The Scottish Government argues that this legislation, rather than the EU Withdrawal Bill, should be the primary vehicle for implementing Brexit in devolved policy areas.

The UK Government referred this bill to the Supreme Court to determine whether it falls within the powers of the Scottish Parliament.

The Supreme Court case does not directly relate to the question of devolved consent for the EU Withdrawal Bill. However, if the court strikes down the Scottish bill, UK ministers might feel emboldened to push through the EU Withdrawal Bill without consent.

Conversely, if the court rules that the Scottish bill is legal, this might strengthen the Scottish Government case that they already have the power to implement Brexit within Scotland.

It has been reported that the court will hear this case on 24 and 25 July. It is therefore not even certain that the case will be settled before the EU Withdrawal Bill completes its passage through Parliament.

A similar ‘continuity’ bill passed by Wales was also referred to the Supreme Court, but following the recent UK-Welsh agreement, Welsh ministers are expected to withdraw their bill.

Update date: 
Thursday, May 17, 2018