33.The European Union (Withdrawal) Bill was published and received its First Reading in the House of Commons on 13 July 2017. Eleven months and 13 days later it received Royal Assent on 26 June 2018. The Government’s stated purpose for the Bill and, subsequently, the Act is “to provide a functioning statute book on the day the UK leaves the EU” with the intention that “the same rules and laws will apply on the day after exit as on the day before”.
34.When the Bill was introduced, the devolved institutions recognised the need to provide clarity and certainty and to preserve a functioning legal system after leaving the EU. In their initial Legislative Consent Memorandums, both the Scottish and Welsh Governments supported the purpose and intent of the Bill, although they declined to give legislative consent to it at that early stage. It soon became clear, however, that there was a difference of opinion over where the legislative authority over certain areas of policy previously held at EU level (“retained EU law”) would lie within the existing UK constitutional arrangement, for example, who would have the authority to change laws and regulations in relation to areas of devolved competence such as fisheries. In brief, the UK Government position, shown through the drafting of the original Clause 11 of the Bill, was to return legislative authority to Westminster by default, while the position of the Scottish and Welsh Governments was for legislative authority on non-reserved matters to return to Holyrood and Cardiff Bay.
35.Only a fortnight before the European Union (Withdrawal) Bill’s publication, the devolved administrations in Scotland and Wales were shown the Bill. Michael Russell MSP, Scottish Government Minister for UK Negotiations on Scotland’s Place in Europe, said that this was not a draft of the Bill for consultation, but rather the finalised Bill. There was no consultation prior to this on the Bill. Ken Thomson, Scottish Government Director General for Constitution and External Affairs, said this lack of consultation was not in line with the established convention that when the UK Government is contemplating legislation that impacts a devolved area, it will share the legislation in draft and work through any issues over a period of many months. This process is designed to ensure that, by the time a Bill is published, the Westminster and devolved Governments have reached agreement, and devolved Ministers are in a position to recommend legislative consent.
36.As soon as the European Union (Withdrawal) Bill was published, the Scottish and Welsh Governments expressed their concern about the Bill to the UK Government. The First Minister of Wales, Rt Hon Carwyn Jones AM, and First Minister of Scotland, Rt Hon Nicola Sturgeon MSP, issued a joint statement calling the Bill a “naked power grab”. They stated that the Bill did not deliver on the UK Government promise to return legislative powers from the EU to the devolved administrations, but rather returned those powers to the UK Government and Parliament, imposing new restrictions on the devolved legislatures.
37.Professor Richard Rawlings, Professor of Public Law at the University College London, told us that this accusation of a “power grab” went to the very heart of the controversy over the Bill because there are (at least) two different constitutional perspectives on how devolution is conceived. Professor Alan Page, Professor of Public Law at the University of Dundee, asserted that this comes down to a difference in view as to what is and is not devolved (discussed above in Chapter 3).
38.Under the original Clause 11 of the Bill, legislative competence would automatically revert to Westminster in those areas of EU law retained in UK law under the Bill. From exit day, these areas of retained EU law could only be modified by devolved legislatures if expressly allowed either through the European Union (Withdrawal) Bill itself or through an Order in Council. In our report Exiting the EU and Clause 11 of the European Union (Withdrawal) Bill: Issues for Consideration, published in November 2017, we highlighted the serious concerns that had been raised in relation to this approach in the Bill to the devolution settlements. In particular we commented on the “constitutionally insensitive” nature of the Government’s approach.
39.As it became clear that there had been a significant erosion of trust between the UK Government and the devolved administrations (which we examine at the end of this chapter), it began to look as though the UK Government and the devolved administrations would be unable to resolve their differences through “mature political debate”, as had been envisaged by Lord Sewel during the passage of the Scotland Act 1998. At that point, the spotlight turned to examination of the Sewel Convention and its provisions.
40.The Sewel Convention derives from a commitment made on behalf of the Government by Lord Sewel during the passage through Parliament of the Scotland Bill, “that Westminster would not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish parliament”. If problems did arise between the Scottish Executive (Government) and the UK Government the intention would be to resolve such matters through mature political dialogue. Only at a point of total impasse should the “ultimate route” be taken, with the UK Parliament enacting primary legislation to change the reserved matters listed in Schedule 5 of the Scotland Act 1998.
41.The Sewel Convention had been considered a constitutional convention and an important feature of the devolution settlement since devolution to Scotland in 1998. The Convention was set out in the Memorandum of Understanding (MoU) with the devolved institutions first in 2001 and included in every updated MoU since. In 2014, the Smith Commission recommended that the Sewel Convention be placed on a statutory footing. This recommendation was adopted in the Scotland Act 2016 which amended the Scotland Act 1998 to set out the Sewel Convention in section 28(8). The Wales Act 2017 also set out the Sewel Convention, amending the Government of Wales Act 2006 to set out the Sewel Convention in section 107(6).
42.Case law surrounding the Sewel Convention, as set out below, has clarified that it has no justiciable status in law, but in doing so has created ambiguity over the Convention’s status in the UK. The justiciability of the Sewel Convention was considered by the UK Supreme Court in R (on the application of Miller and another) (Respondents) v Secretary of State for Exiting the European Union (Miller). The Majority judgement found that “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”. The judgement made clear that political conventions, regardless of their potentially fundamental constitutional importance, are not enforceable at law. Nevertheless, the Supreme Court also said that its judgement does not diminish the standing of political conventions and, with particular reference to the Sewel Convention, its “important role in facilitating harmonious relationships between the UK Parliament and the devolved legislatures”.
43.The Supreme Court was not silent on the significance of the Scotland Act 2016. The Court held that the insertion of section 63A into the Scotland Act 1998 which made the Scottish Parliament and Scottish Government a permanent part of the UK’s constitutional arrangements, “signifies a commitment of the UK Parliament and government to those devolved institutions”. In this context, the judgement of the Supreme Court is that the purpose of legislative recognition of the Sewel Convention “was to entrench it as a convention”.
44.Professor Gordon Anthony, Professor of Law at Queens University Belfast, said that the Miller judgement was a “very strong reassertion of Parliamentary Sovereignty”, after “a series of very important statements within the House of Lords and then the Supreme Court that moved towards an idea of divided sovereignty”. Both Professor Page and Professor Anthony told us that the implication of the Miller case is that the courts will not police or even discuss the application of the Sewel Convention, because it is not legally enforceable. The consequences and implications of the convention are a matter for politicians, not the judiciary. Professor Page, commenting on the Supreme Court’s ruling, considered that placing the convention into primary legislation “represents a solemn and binding commitment. It is the most solemn expression of intention that you can provide under our constitution.”
45.To summarise, the Miller judgements in effect recognised that the Sewel Convention had been set out in legislation to entrench the convention, but this had not made it legally enforceable, clarifying that it was a matter for politicians, not the judiciary. Despite explicitly avoiding commenting on the Sewel convention, this decision was seen by many as a strong reassertion of Parliamentary sovereignty after the idea of shared sovereignty had been seen to be gaining some traction. This gives context to the UK Government’s view of Parliamentary sovereignty and its assertion of that in the original clause 11 of the European Union (Withdrawal) Bill.
46.After extensive negotiations with the devolved administrations in Scotland and Wales, through the formal mechanism of the Joint Ministerial Council (European Negotiations) (JMC(EN)) and through informal bilateral discussions. The UK Government introduced amendments to the European Union (Withdrawal) Bill and parallel assurances, in the form of an inter-governmental agreement, which were sufficient to reassure the Welsh Government, and the National Assembly for Wales gave legislative consent. These amendments and assurances were, however, not sufficient for the Scottish Government and the Scottish Parliament declined to give legislative consent to the Bill. This meant that when the European Union (Withdrawal) Act 2018 received Royal Assent on 26 June 2018, it became the first Act of the UK Parliament to be passed without the Legislative Consent of a devolved legislature.
47.Professor Adam Tomkins MSP, Shadow Cabinet Secretary for the Constitution, Communities, Social Security and Equalities, argued that the amendments tabled at Lords Report Stage had effectively reversed the constitutional presumption in the original Clause 11. He stated that:
It is one of the founding principles of devolution in Scotland, and has been since 1999—and now also in Wales—is that everything is devolved apart from that which is expressly reserved under the schedules to the Scotland Act 1998. The effect of the original clause 11 was unfortunately to turn that around. The amendments published by the Government last week reverse that.
48.The Government’s amended Clause 11 ended up renumbered as Clause 15 and then became section 12 of the Act. Under the new Clause 15, devolved legislatures could modify retained EU law within their areas of competence, unless the UK Government specified a restriction by regulation under affirmative procedure. The new Clause 15 strengthened the requirement for the UK Government to “consult” with relevant devolved legislatures before passing regulations. Rather than just a duty to consult, UK Minsters would have to share draft regulations with the devolved Governments and would not be able to lay regulations in the UK Parliament until the devolved legislatures had made a decision on whether to give consent, or 40 days had lapsed.
49.A failure to provide consent, either via a motion refusing consent or not passing a motion at all would not, however, be fatal to the regulation. If a UK Minister laid a draft without the consent of a devolved legislature, an explanatory statement would be required. Therefore, in effect this is a power to delay and highlight the disagreement, not to veto.
50.Clause 15 also included a sunset provision that allowed regulations to be made for a period of two years after exit day (the same sunset provision as in clauses 7 and 8 of the Bill). Regulations made under the Bill cannot be modified by devolved institutions for a period of five years from the date they are made. After a five-year period, an Act of a devolved legislature can revoke regulations. Alongside the Government’s amendments to the Bill described above, the UK Government published an Intergovernmental Agreement on the European Union (Withdrawal) Bill. This was agreed between the UK and Welsh Governments and provides further explanation of the amendments and commitments on the establishment of Common Frameworks.
51.The contradictory nature of the situation was not lost on Professor Keating who, when discussing the Sewel Convention in evidence to the inquiry, argued that, while a convention is not, as Miller made clear, binding in law, “it is not just a political agreement either. Conventions are the basis for our constitution”. He said that, on the one hand, the UK Government has accepted the Sewel Convention and extended its application to secondary legislation under the European Union (Withdrawal) Act 2018; but, on the other hand, one could also argue that “the Sewel Convention post the Scotland Act 2016 and the Wales Act 2017 has failed its first test because … just when it really matters … the UK Government says ultimately it does not make any difference.”
52.The Minister said to us that he had taken part in “extensive” discussions with the devolved Governments which resulted in what he described as “radical changes” to the Bill in regards the clauses concerning the devolved institutions. The Minister also said, “I have been unable to accept … that the Sewel convention should be interpreted as meaning something that it does not”, and should not be interpreted as giving a devolved Government or Parliament a right of veto over a UK-wide framework.
53.We are pleased that the European Union (Withdrawal) Act goes some way towards addressing the concerns raised in our 28 November 2017 report on Clause 11, and we believe it is unfortunate that an agreement acceptable to each of the UK, Welsh and Scottish Governments was not ultimately reached on that basis. However, we note that while the mechanisms for providing a functioning statute book on exit day in relation to the devolved institutions have been altered to account for many of the original concerns expressed by the devolved institutions, the underlying UK Government approach to the issue has not changed.
54.As detailed above the Welsh and Scottish Governments were unhappy with UK Government’s initial approach under the original Clause 11, and the Scottish Government was still not content after that clause had been amended (and had become Clause 15). This led the Scottish Government and Parliament to withhold legislative consent for the European Union (Withdrawal) Bill, a further breakdown of trust between the two Governments and has resulted in much discussion about the effectiveness and future use of the Sewel Convention.
55.Rt Hon Carwyn Jones AM, First Minister of Wales, told us in oral evidence before the Bill received Royal Assent that he and the Welsh Government were working hard with the UK Government to reach an agreement on amendments to the European Union (Withdrawal) Bill. He also considered, however, that were the UK Parliament to override the National Assembly for Wales, though it would be legally correct, it would also be “wholly undemocratic”. Ultimately, the Welsh Government and the UK Government reached an agreement, through the intensive negotiations the Minister referred to, and this led to the National Assembly for Wales passing a Legislative Consent Motion by 46 votes to 9.
56.It was different in Scotland, however, as an agreement was not reached. Michael Russell MSP, Scottish Government Minister for UK Negotiations on Scotland’s Place in Europe, said that it was the Scottish Government’s first preference to give legislative consent to the European Union (Withdrawal) Bill, but that it had been unable to reach an agreement with the UK Government. The Scottish Parliament voted 93 to 30 against a Legislative Consent Motion. When the UK Parliament continued to pass the European Union (Withdrawal) Act 2018, without the consent of the Scottish Parliament, Michael Russell MSP described it as a “direct breach of the Sewel Convention”. He argued that the Sewel Convention was intended to ensure that Scotland could not be ignored and that the concerns of the Scottish Parliament would be heeded. He continued
… the convention is there to prevent Westminster from legislating without our consent in areas that are within our competence, or from changing our powers, which is essential to the security and stability of devolution.
57.Michael Russell MSP also drew attention to the words of Rt Hon David Mundell MP, Secretary of State for Scotland, who said:
While the devolution settlements did not predict EU exit, they did explicitly provide that in situations of disagreement the UK Parliament may be required to legislate without the consent of devolved legislatures.
58.Michael Russell MSP argued that the position expressed by the Secretary of State for Scotland directly contradicted the point of the Sewel Convention, which was that, in cases of disagreement, the UK Parliament should not legislate without the consent of the relevant devolved legislature.
59.The Secretary of State for Scotland stated the UK Government’s view that, throughout the Bill’s passage, the Government demonstrated its “commitment to the Sewel Convention and the principles that underpin our constitution. We have followed the spirit and letter of the devolution settlement at every stage.” As evidence of this, the Minister referred to intense negotiations and work done by all sides, leading to what he described as “radical changes” to the Bill made by the UK Government.
60.When we questioned the Minister about the apparent breakdown of trust, he acknowledged that lessons could be learned from the handling of the European Union (Withdrawal) Bill, but emphasised the need for urgency with the Bill given the two-year Article 50 deadline, which had left little time for reflection and consultation. He told us that:
Looking back, a lesson I would draw is that of the need for intense and frequent consultation after a Bill is published and, obviously, ideally, one would want to know beforehand what the question was.
He emphasised the big difference in positions at the start of the Bill process and the intensive work on all sides to reach a position that he thought respected the interests of all parties.
61.Ultimately, much of the disagreement over the Sewel Convention came down to the definition of the term “not normally” in the convention: “Westminster would not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish Parliament” [emphasis added]. The Minister told us that leaving the EU creates “a quite exceptional circumstance” and as such these “are not normal times”. Both the Minister and the Secretary of State for Scotland were quick to point out that Michael Russell MSP himself and also, subsequently, Lord Sewel had acknowledged that “these are not normal times”. The Minister was also very clear that the UK Government was not willing to give the Scottish or any devolved government what he described as “a veto”.
62.Michael Russell MSP had an alternative view of the use of the term “not normally” in the convention:
“Not normally” has not been defined, but has been understood to mean extreme circumstances that would be clear and obvious to all. However, the current UK Government is changing that definition, too. Now it means whenever it wants to get its way on whatever subject it chooses—nothing more or less. “Normal” is what the UK Government says it is, and disagreement with the UK Government is “not normal”. That is not how devolution was designed, or how it is meant to operate.
63.The difficulties caused by the term “not normally” were considered by our predecessor Committee in its report Constitutional implications of the Government’s draft Scotland clauses. The report described the term as “clearly problematic”. It recommended that, either the circumstances under which the UK Parliament could legislate on matters covered by the Convention without the consent of the Scottish Parliament be set out in detail; or that a requirement be made for a minister to set out the reasons for legislating without consent of the Scottish Parliament.
64.It is highly regrettable that there was little consultation with devolved Governments in advance of the publication of the European Union (Withdrawal) Bill, as earlier consultation could have possibly avoided much of the acrimony that was created between the UK Government and the devolved Governments. When the UK Government is considering legislation that falls within a devolved competence, draft legislation should preferably be shared far enough in advance for a devolved government to identify and work through any issues in the legislation with the UK Government.
65.It is clear that, while the Sewel Convention was entrenched in statute by the UK Parliament through the Scotland Act 2016 and the Wales Act 2017, no corresponding parliamentary procedures have been established to recognise the Convention in the legislative process. Nor has thought been given to how the devolved legislatures might more effectively communicate their legislative consent decisions and have these officially taken account of as a Bill progresses through the UK Parliament.
66.The House of Commons and the House of Lords should consider establishing a procedure to acknowledge more clearly that a Bill is in an area that requires legislative consent and whether that consent has been given by a devolved legislature; and where such consent cannot be obtained, what procedures should follow.”
67.It is clear from the evidence to our inquiry that there is a considerable level of ambiguity surrounding the Sewel Convention. It is unclear whether Lord Sewel’s commitment on the floor of the House of Lords is to be taken as the definitive statement of the Convention and exceptions to it, or whether the Convention through the practice of this commitment developed and grew into a convention that the UK Government should never legislate without consent of a devolved legislature, notwithstanding the supremacy of the UK Parliament and its ability to legislate in an abnormal situation. Such ambiguity is apparent from the divergent views of the UK Government and the devolved administrations, as well as those of academic commentators.
68.In the case of the European Union (Withdrawal) Bill, the Government chose to interpret the Sewel Convention in such a way that legislative consent from the Scottish Parliament was deemed unnecessary because of the very particular circumstances of the Bill. That interpretation of the Sewel Convention was contested by the Scottish and Wales Governments. We recommend that the Government sets out a clear statement of circumstances under which legislative consent is not required by the Sewel Convention in future in both the Devolution Policy for the Union that we have recommended it should state and in the Memorandum of Understanding between the UK Government and the devolved institutions.
47 , Para 10
48 Legislative Consent Memorandum European Union (Withdrawal) Bill, Scottish Government, LCM-S5–10, Session 5 (2017); Legislative Consent Memorandum European Union (Withdrawal) Bill, Welsh Government, September 2017
50 ; [Thomson]
52 Scottish Government, , 13 July 2017; Welsh Government, , 13 July 2017
53 Scottish Government, , 13 July 2017; Welsh Government, , 13 July 2017
56 First Report of the Public Administration and Constitutional Affairs Committee Session 2017–19, , HC484, 28 November 2017
57 First Report of the Public Administration and Constitutional Affairs Committee Session 2017–19, , HC484, 28 November 2017, para 41
58 HL Deb 21 Jul 1998 Vol 592 c
59 HL Deb 21 Jul 1998 Vol 592 c
60 HL Deb 21 Jul 1998 Vol 592 c
61 Memorandum of understanding and supplementary agreements between the United Kingdom Government, Scottish Ministers, the Cabinet of the National Assembly for Wales and the Northern Ireland Executive Committee, Cm 5240 18 December 2001
Devolution: memorandum of understanding and supplementary agreements between the United Kingdom Government, the Scottish Ministers, the Welsh Ministers and the Northern Ireland Executive Committee, Cm 7864, 29 March 2010
Memorandum of Understanding and supplementary agreements between the United Kingdom Government, the Scottish Ministers, the Welsh Ministers, and the Northern Ireland Executive Committee, 30 June 2011
Memorandum of understanding and supplementary agreements between the United Kingdom Government, the Scottish Ministers, the Welsh Ministers, and the Northern Ireland Executive Committee. September 2012
Memorandum of Understanding and supplementary agreements between the United Kingdom Government, the Scottish Ministers, the Welsh Ministers, and the Northern Ireland Executive Committee, October 2013
62 The Smith Commission: Report of the Smith Commission for further devolution of powers to the Scottish Parliament, 27 November 2014, para 22
63 Scotland Act 2016, section 2
64 R (on the application of Miller and another) (Respondents) v Secretary of State for Exiting the European Union  UKSC 5
65 R (on the application of Miller and another) (Respondents) v Secretary of State for Exiting the European Union  UKSC 5, para 151
66 R (on the application of Miller and another) (Respondents) v Secretary of State for Exiting the European Union  UKSC 5, para 151
67 R (on the application of Miller and another) (Respondents) v Secretary of State for Exiting the European Union  UKSC 5, para 149
68 R (on the application of Miller and another) (Respondents) v Secretary of State for Exiting the European Union  UKSC 5, para 149
72 Cabinet Office, , 25 April 2018; Cabinet Office, , 25 April 2018; Cabinet office, , 25 April 2018; Cabinet Office, , 25 April 2018
74 Cabinet Office, , 25 April 2018
80 The Welsh motion ; see also , House of Commons Library Briefing paper 08275, 23 May 2018
81 The Scottish motion
82 SP OR June 19 2018 col
83 SP OR June 19 2018 col
84 HC Deb 14 Jun 2018 Vol 642
85 SP OR June 19 2018 col
86 HC Deb 14 Jun 2018 Vol 642
90 HL Deb 21 Jul 1998 Vol 592 c
92 ; HC Deb 14 Jun 2018 Vol 642
94 SP OR June 19 2018 col
95 The ninth report of the Political and Constitutional Reform Committee session 2014–15, , HC1022, 22 March 2015
96 The ninth report of the Political and Constitutional Reform Committee session 2014–15, , HC1022, 22 March 2015, para 70
97 The ninth report of the Political and Constitutional Reform Committee session 2014–15, , HC1022, 22 March 2015, para 70
Published: 31 July 2018