The Governance of the Union: Consultation, Co-operation and Legislative consent Contents

Chapter 4: Observance of the Sewel convention

208.In Chapter 1 we outlined the impact of COVID-19 and, in particular, Brexit on the functioning of the Sewel convention. During this inquiry we sought to understand the extent to which the Sewel convention has been observed prior to and since Brexit and whether a longer-term weakening of the convention has occurred.

209.It is important to note that, following the UK’s departure from the EU, a significant number of powers that were largely exercised at the EU level were returned to Westminster and the devolved institutions.260 As a result, devolved competence has expanded since Brexit. This has led to an increase in the number of policy areas in which the boundary between reserved and devolved competence is less than clear and the question of legislative consent may arise. On occasion the devolved governments have taken a more expansive view than the UK Government regarding whether consent is required for a particular bill. In some instances, the UK Government has disagreed with the devolved government’s view and proceeded to legislate without consent.261 These instances are listed later in this chapter.

Commitment to the Sewel convention

210.Witnesses had different views as to the UK Government’s commitment to the Sewel convention.

211.Dr Anderson and Dr Brown Swan said: “[T]he Sewel Convention can no longer be considered a viable self-denying ordinance, and instead appears to be increasingly viewed by the UK Government as merely optional.”262

212.The Scottish Parliament’s CEEAC Committee considered the Sewel convention to be “under strain” since the UK’s departure from the EU. It identified a “fundamental difference of viewpoint” between the UK Government and the devolved governments regarding the effectiveness of the convention, which had led to a deterioration in relations. The Committee did not consider such fundamental disagreement on a key constitutional matter to be sustainable, particularly in the context of “an increasingly shared space at the intergovernmental level”.263

213.The same Committee noted that UK Ministers had expressed a view that “it is sometimes necessary for the UK Government to act in its role as the government for the whole of the UK” and that “it is necessary that the UK Government can fulfil the role of the UK’s national government”. However, it was unclear what the UK Government meant by “necessary” in this context and how it related to the “not normally” threshold contained in the Sewel convention.264

214.In written evidence, DLUHC offered a different perspective:

“The UK Government is committed to the Sewel Convention and continues to work with the devolved administrations on all bills that engage the legislative consent process. We have legislated with the consent of the devolved legislatures on hundreds of occasions. Whilst the Government has reluctantly had to proceed without consent on occasion, we do not consider this indicates an erosion of respect for the Convention. Indeed the Convention allows for this–not normally does not mean never. The occasions where the UK Government has proceeded without consent are few and far between though and we do not take them lightly. The UK Government pursues this course of action only as a last resort following significant efforts to find agreement with the devolved administrations. Finding that agreement can only be achieved through committed, pragmatic and timely collaborative working between all four administrations.”265

215.Mr Jack, then Secretary of State for Scotland, told us that since the beginning of devolution, the UK Government had legislated in areas of Scottish Government competence over 200 times and on only ten of those occasions had this been without the consent of the Scottish Parliament. He said that on each occasion legislation was passed without the consent of the Scottish Parliament it “was critical for the whole of the United Kingdom”. For example, it was to implement Brexit or deliver on trade deals. Mr Jack said that in these circumstances the UK Government had only legislated “after engaging with the Scottish Government, hearing their concerns and offering to make changes to the legislation.”266

216.Mr Davies, then Secretary of State for Wales, said there had been eight occasions on which the UK Parliament had legislated without the consent of the Senedd and these had been in relation to legislation regarding the UK’s departure from the EU and the UK Internal Market. He said: “The figures that we have would suggest that, on the vast majority of occasions, the system works well. On the rare occasions when it does not, there is usually some strong political motive on both sides.”267

217.In Respect and Co-operation: Building a Stronger Union for the 21st Century we concluded:

“Where the UK Parliament legislates in devolved areas without consent it should demonstrate that the particular circumstances require it to do so. In any event, the UK Government should always demonstrate that it has taken all reasonable steps to secure consent. Other than in exceptional circumstances, the UK Government ought not to seek to legislate in devolved areas without consent.”268

Legislation passed without the consent of the devolved legislatures

218.In this chapter we have sought to provide lists of occasions on which the UK Parliament has legislated without the consent of each of the devolved legislatures. As legislative consent motions are lodged and recorded according to the different procedures of each of the individual devolved legislatures, and because bills can—as they pass through the UK Parliament and are subject to amendment—evolve to gain or lose consent from the devolved legislatures, it is difficult to provide definitive data on consent decisions. Sometimes devolved legislatures grant consent to some provisions in a bill but not others, in which case it is not as simple as saying that the devolved legislature has granted or withheld its consent on a particular bill. In addition, as discussed above, there is sometimes disagreement between the UK Government and the devolved governments as to whether particular bills, or particular provisions within bills, require legislative consent.

Legislation passed without the consent of the Scottish Parliament

219.In written evidence the Scottish Government provided a list of instances in which it considered that the UK Parliament had legislated without the consent of the Scottish Parliament. These occasions were as follows:

(1)European Union (Withdrawal) Act 2018

(2)European Union (Withdrawal Agreement) Act 2020

(3)United Kingdom Internal Market 2020

(4)European Union (Future Relationship) Act 2020

(5)Elections Act 2022269

(6)Professional Qualifications Act 2022

(7)Nationality and Borders Act 2022

(8)Subsidy Control Act 2022

(9)Trade (Australia and New Zealand) Act 2023

(10)Genetic Technology (Precision Breeding) Act 2023

(11)Retained EU Law (Revocation and Reform) Act 2023

(12)Northern Ireland Troubles (Legacy and Reconciliation) Act 2023270

220.By contrast, the UK Government considers that there are 10 bills with regard to which the UK Parliament legislated without the consent of the Scottish Parliament. These occasions were as follows:

(1)European Union (Withdrawal Act) 2018

(2)European Union (Withdrawal Agreement) Act 2020

(3)European Union (Future Relationship) Act 2020

(4)United Kingdom Internal Market Act 2020

(5)Professional Qualifications Act 2022

(6)Subsidy Control Act 2022

(7)Northern Ireland Troubles (Legacy and Reconciliation) Act 2023

(8)Procurement Act 2023

(9)Retained EU Law (Revocation and Reform) Act 2023

(10)Trade (Australia and New Zealand) Act 2023271

Legislation passed without the consent of the Senedd

221.In written evidence the Welsh Government provided a list of instances since 2020 in which it considered that the UK Parliament had legislated without the consent of the Senedd. We have supplemented this with our own research to add instances prior to 2020 where the Senedd withheld consent to bills that went on to receive Royal Assent.

(1)Enterprise and Regulatory Reform Act 2013272

(2)Anti-social Behaviour, Crime and Policing Act 2014273

(3)Housing and Planning Act 2016274

(4)Trade Union Act 2016275

(5)European Union (Withdrawal Agreement) Act 2020

(6)Agriculture Act 2020

(7)United Kingdom Internal Market Act 2020

(8)European Union (Future Relationship) Act 2020

(9)Animal Welfare (Sentencing) Act 2021

(10)Nationality and Borders Act 2022

(11)Police, Crime, Sentencing and Courts Act 2022276

(12)Professional Qualifications Act 2022

(13)Subsidy Control Act 2022

(14)Genetic Technology (Precision Breeding) Act 2023

(15)Retained EU Law (Revocation and Reform) Act 2023

(16)Trade (Australia and New Zealand) Act 2023

(17)Energy Act 2023

(18)Illegal Migration Act 2023

(19)Strikes (Minimum Service Levels) Act 2023

(20)Procurement Act 2023

(21)Trade (Comprehensive and Progressive Agreement for Trans-Pacific Partnership) Act 2024277

(22)Leasehold and Freehold Reform Act 2024

(23)Victims and Prisoners Act 2024278

222.By contrast, the UK Government considers that there are 12 bills, all in the 2019–24 Parliament, with regard to which the UK Parliament legislated without the consent of the Senedd. These occasions were as follows:

(1)European Union (Withdrawal Agreement) Act 2020

(2)European Union (Future Relationship) Act 2020

(3)United Kingdom Internal Market Act 2020

(4)Animal Welfare (Sentencing) Act 2021

(5)Professional Qualifications Act 2022

(6)Subsidy Control Act 2022

(7)Energy Act 2023

(8)Procurement Act 2023

(9)Retained EU Law (Revocation and Reform) Act 2023

(10)Trade (Australia and New Zealand) Act 2023

(11)Leasehold and Freehold Reform Act 2024

(12)Victims and Prisoners Act 2024279

Legislation passed without the consent of the Northern Ireland Assembly

223.During the periods in which it has not been sitting, the Northern Ireland Assembly has been unable to participate in the legislative consent process. Therefore, there are many bills that the Assembly has not been able to consider and, as a result, the UK Parliament has legislated without its consent.280 However, taking into account only those instances in which the Assembly was convened, according to written evidence provided by the UK Government, there have been 10 occasions where the UK Parliament legislated without the consent of the Northern Ireland Assembly. These were as follows:

(1)European Union (Withdrawal Agreement) Act 2020

(2)European Union (Future Relationship) Act 2020

(3)United Kingdom Internal Market Act 2020

(4)Trade (Disclosure of Information) Act 2020

(5)Counter-Terrorism and Sentencing Act 2021

(6)Trade Act 2021281

(7)Digital Markets, Competition and Consumers Act 2024

(8)Post Office (Horizon System) Offences Act 2024

(9)Trade (Comprehensive and Progressive Agreement for Trans-Pacific Partnership) Act 2024

(10)Victims and Prisoners Act 2024

224.In their written evidence, the UK Government distinguishes the final four bills listed above from the preceding six as follows: “Four Acts passed immediately following the Northern Ireland Assembly being reconvened [in February 2024] with no time for legislative consent to be considered prior to the UK Parliament being prorogued [in May 2024].”282

Legislation amended to address the concerns of the devolved institutions

225.There are also examples of instances where the devolved legislatures have withheld consent or the devolved governments have recommended against consent and changes were made to the Bill to address their concerns.

226.During the passage of what became the Health and Care Act 2022 both the Welsh and Scottish Governments initially recommended against consent.283 Both governments were, however, ultimately able to recommend consent following several UK Government amendments to the Bill to address their concerns.284 For example, amendments were made to require UK Government consultation with the Welsh and Scottish Ministers before making any regulations or directions relating to Medicine Information Systems. Concurrent powers were also granted to the devolved administrations to allow them to make their own regulations on the implementation of reciprocal healthcare arrangements.285

227.On some occasions a devolved administration’s concerns have been addressed by removing from the Bill provisions which engage devolved competence. For example, there were two iterations of the Bill that became the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020—one introduced in 2018 and a second introduced in 2020. For both bills the Scottish Government recommended against consent. As a result, to avoid a refusal of legislative consent, the UK Government removed the provisions relating to Scotland from the Bill. 286

228.The Sewel convention generally operated well from 1999 until it was put under strain by the implementation of Brexit. Since Brexit, the UK Government has legislated without the consent of one or more of the devolved legislatures on multiple occasions, and at times has done so on bills unrelated to Brexit. We urge the new Government to commit to respecting the Sewel convention, namely by proceeding in accordance with the principle that the UK Parliament will not normally legislate with regard to devolved matters except with the agreement of the devolved legislature.

229.However, we also recognise that the increased occasions on which the UK Government has legislated without consent may in part be the result of a trend since Brexit for the devolved governments to take a more expansive view of devolved competence. This has led to differences of opinion between the UK Government and the devolved government as to whether consent is required with regard to specific bills. In such circumstances, close and timely engagement between governments is required to address differences of opinion and, where possible, reach consensus. Occasions on which amendments have been made to bills to address the concerns of the devolved legislatures and ultimately secure their consent demonstrate the benefits of such engagement.


259 Prime Minister’s Office, The King’s Speech 2024, pp 7-9: https://assets.publishing.service.gov.uk/media/6697f5c10808eaf43b50d18e/The_King_s_Speech_2024_background_briefing_notes.pdf [accessed 22 September 2024]

260 Constitution Committee, Brexit legislation: constitutional issues (6th Report, Session 2019–21, HL Paper 71), para 54

261 For example, the Welsh Government considered that consent was required for the Genetic Technology (Precision Breeding) Act 2023 but the UK Government disagreed. Welsh Government, Legislative consent memorandum: The Genetic Technology (Precision Breeding) Bill, paras 9–19: https://senedd.wales/media/yh3dmqgk/lcm-ld15526-e.pdf [accessed 22 September 2024]

262 Written evidence from Dr Paul Anderson and Dr Coree Brown Swan (GOU0001)

263 Written evidence from the Scottish Parliament’s Constitution, Europe, External Affairs and Culture Committee (GOU0005)

264 Ibid.

265 Written evidence from the Department for Levelling Up, Housing and Communities (GOU0006)

266 Q 72 (Rt Hon Alister Jack MP)

267 Q 83 (Rt Hon David TC Davies MP)

268 Constitution Committee, Respect and Co-operation: Building a Stronger Union for the 21st Century (10th Report, Session 2021–22, HL Paper 142), para 124

269 Legislative consent was initially sought from the Scottish Parliament for the Elections Act 2022, but the Scottish Government recommended against consent in their legislative consent memorandum. To address the Scottish Government’s concerns, the UK Government committed to bringing forward amendments to the Bill during its Lords stages to remove all aspects which related to devolved matters. The UK Government was, therefore, no longer seeking legislative consent from the Scottish Parliament. The Scottish Government, however, disagreed with this devolution analysis. Scottish Government, Legislative Consent Memorandum (September 2021): https://www.parliament.scot/-/media/files/legislation/bills/lcms/elections-bill/splcms068.pdf [accessed 22 September 2024]; House of Commons Library, Elections Bill 2021–22: Progress of the Bill, Research Briefing, CBP 9421, May 2022; Letter from David McGill, Clerk/Chief Executive Scottish Parliament to Dr John Benger, Clerk of the House of Commons (1 February 2022): https://bills.parliament.uk/publications/45053/documents/1341

270 Written evidence from Angus Robertson, Cabinet Secretary for Constitution, External Affairs and Culture, Scottish Government (GOU0011)

271 Written evidence from the Ministry of Housing, Communities & Local Government (GOU0012)

272 House of Commons Library, Devolution: The Sewel Convention, Briefing Paper, CBP-8883, May 2020

273 Ibid.

274 Ibid.

275 Ibid.

276 The UK Government sought the legislative consent of the Senedd for some clauses in this bill, and consent for these clauses was granted by the Senedd. However, legislative consent was separately withheld for additional clauses for which the UK Government had not sought consent. Letter from Manon Antoniazzi, Chief Executive and Clerk of the Senedd to Simon Burton, Clerk of the Parliaments and Dr John Benger, Clerk of the House of Commons (19 January 2022): https://bills.parliament.uk/publications/44756/documents/1266; Letter from Manon Antoniazzi, Chief Executive and Clerk of the Senedd to Simon Burton, Clerk of the Parliaments and Dr John Benger, Clerk of the House of Commons (2 March 2022): https://bills.parliament.uk/publications/45495/documents/1515; Explanatory Notes to the Police, Crime, Sentencing and Courts Bill [Bill 268 (2021–22)-EN], p 149

277 The UK Government sought the legislative consent of the Senedd for clause 3 in this bill, for which consent was granted by the Senedd. However, legislative consent was separately withheld for clause 2 for which the UK Government had not sought consent. Letter from Manon Antoniazzi, Chief Executive and Clerk of the Senedd to Simon Burton, Clerk of the Parliaments and Tom Goldsmith, Clerk of the House of Commons (26 March 2024): https://bills.parliament.uk/publications/54921/documents/4632; Welsh Government, Legislative Consent Memorandum (8 December 2023): https://senedd.wales/media/kgtp1ev4/lcm-ld16203-e.pdf [accessed 22 September 2024]

278 Written evidence from Rebecca Evans MS, Cabinet Secretary for Finance, Constitution & Cabinet Office, Welsh Government (GOU0010)

279 Written evidence from the Ministry of Housing, Communities & Local Government (GOU0012)

280 Written evidence from the Northern Ireland Executive Office (GOU0013)

281 Written evidence from the Ministry of Housing, Communities & Local Government (GOU0012)

282 Ibid.

283 Welsh Government, Legislative Consent Memorandum (September 2021): https://senedd.wales/media/t0jpnfx3/lcm-ld14510-e.pdf [accessed 23 September 2024]; Scottish Government, Legislative Consent Memorandum (September 2021): https://www.parliament.scot/-/media/files/legislation/bills/lcms/health-and-care-bill/splcms065.pdf [accessed 23 September 2024]

284 Letter from David McGill, Clerk/Chief Executive Scottish Parliament to Dr John Benger, Clerk of the House of Commons (10 February 2022): https://bills.parliament.uk/publications/45228/documents/1407; Letter from Manon Antoniazzi, Chief Executive and Clerk of the Senedd to Simon Burton, Clerk of the Parliaments and Dr John Benger, Clerk of the House of Commons (16 February 2022): https://bills.parliament.uk/publications/45261/documents/1421

285 Scottish Government, Supplementary Legislative Consent Memorandum (December 2021): https://www.parliament.scot/-/media/files/legislation/bills/lcms/health-and-care-bill/supplementary-splcms065a.pdf [accessed 23 September 2024]

286 Constitution Committee, Immigration and Social Security Co-ordination (EU Withdrawal) Bill (11th Report, Session 2019–21, HL Paper 120), para 32




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