Legislative consent motion

As of February 2022, the three devolved governments have refused or partially refused legislative consent motions on 20 occasions. However, even if consent is refused, the Parliament of the United Kingdom may still pass legislation on the devolved issue in question under the doctrine of parliamentary sovereignty and the understanding that the United Kingdom is a unitary state.

Background

The Government of Ireland Act 1920 devolved many issues relating to legislation for Northern Ireland to the Parliament of Northern Ireland (and for Southern Ireland to the Parliament of Southern Ireland). The Parliament of the United Kingdom would not normally legislate for Northern Ireland for these matters without the consent of the Parliament of Northern Ireland under what was known as the "consent principle". Westminster maintained sovereignty for Northern Ireland under section 75 of the 1920 act, which stated that the supreme authority of Westminster "shall remain unaffected and undiminished over all persons, matters, and things" in Ireland.

The Scotland Act 1998 devolved many issues relating to legislation for Scotland to the Scottish Parliament. The Northern Ireland Act 1998 devolved many issues relating to legislation for Scotland to the Northern Ireland Assembly. The Government of Wales Act 1998 and the Government of Wales Act 2006 devolved many issues relating to legislation for Wales to the Senedd. The UK Parliament maintains parliamentary sovereignty and may legislate on any issue, with or without the permission of the devolved assemblies and parliaments.

The motions were named after Lord Sewel, then Parliamentary Under-Secretary of State for Scotland who announced the policy in the House of Lords during the passage of the Scotland Act 1998. Noting that the 1998 act recognised the parliamentary sovereignty of the British Parliament, he said that "as happened in Northern Ireland earlier in the century, we would expect a convention to be established that Westminster would not normally legislate with regard to devolved matters" in Scotland without the consent of the Scottish Parliament.

The devolved governments have no formal say in how the British Parliament legislates on reserved matters.

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Use and application

There are two uses for a legislative consent motion, taking Scotland as the example:

When the UK Parliament is considering legislation extending only (or having provisions extending only) to England and Wales, and the Scottish Parliament, being in agreement with those provisions, wishes for the UK Parliament to extend them to Scotland. This saves the need for separate, similar legislation to be passed by the Scottish Parliament.
When Westminster is considering legislation applying to Scotland but which relates to both devolved and reserved matters, where it would otherwise be necessary for the Scottish Parliament to legislate to complete the jigsaw.

As well as legislation about devolved matters, the convention extends to cases where UK bills give executive powers to Scottish Ministers, including in reserved areas, or which seek to change the boundary between reserved and devolved matters.

Guidance on the use of legislative consent motions for Whitehall departments is set out in Devolution Guidance Note 10.

Chapter 9B of the Scottish Parliament's Standing Orders specify the procedure for considering Sewel motions.

Legal status

The convention under which the UK government uses legislative consent motions is not legally binding. It was originally contained in a "memorandum of understanding" between the UK government and the devolved administrations. That document states in an explanatory note that it is not intended to be legally binding, and the paragraph dealing with the convention makes clear that the UK Parliament retains authority to legislate on any issue, whether devolved or not.

14. The United Kingdom Parliament retains authority to legislate on any issue, whether devolved or not. It is ultimately for Parliament to decide what use to make of that power. However, the UK Government will proceed in accordance with the convention that the UK Parliament would not normally legislate with regard to devolved matters except with the agreement of the devolved legislature. The devolved administrations will be responsible for seeking such agreement as may be required for this purpose on an approach from the UK Government.

— Memorandum of Understanding (October 2013)

Since then, however, the convention has been incorporated into law in both Scotland and Wales. However, despite this inclusion, the statements are not legally binding on the UK Parliament.

Scotland Act 2016

In 2016 the UK Parliament passed the Scotland Act 2016 which amended the Scotland Act 1998 to contain an explicit and specific legal reference to the so-called Sewel convention. Section 2 of the 2016 Act reads as follows:

2 The Sewel convention

In section 28 of the Scotland Act 1998 (Acts of the Scottish Parliament) at the end add—

"(8) 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."

Wales Act 2017

In 2017 the UK Parliament passed the Wales Act 2017 which amended the Government of Wales Act 2006 to contain an explicit and specific legal reference to Westminster legislation on matters that are devolved to the Welsh Assembly. Section 2 of the 2017 Act reads as follows:

2 Convention about Parliament legislating on devolved matters

In section 107 of the Government of Wales Act 2006 (Acts of the National Assembly for Wales), after subsection (5) insert—

"(6) 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 Assembly."

Current situation and review

In 2005 the Procedures Committee undertook an inquiry into the use of Sewel motions, and heard evidence from Lord Sewel, Henry McLeish (the former First Minister of Scotland), and Anne McGuire, MP (the Parliamentary Under-Secretary of State for Scotland). Following the review, the motions were retitled legislative consent motions and the procedures enshrined in the parliament's standing orders.

As of 7 October 2013, 131 legislative consent motions had been passed by the Scottish Parliament, 39 in the first session (1999–2003), 38 in the second (2003–2007), 30 in the third (2007–11) and 24 so far in the fourth (2011–16).

In December 2022, the Labour Party announced proposals to strengthen the Sewel convention such that it becomes "constitutionally protected", as part of a report on constitutional reform led by former Prime Minister Gordon Brown.