The Sewel Convention: Key Features
1. The Sewel Convention is an important aspect of the devolution settlement, and is reflected in the Memorandum of Understanding between the UK Government and the Scottish Government (formerly Scottish Executive) and in Devolution Guidance Note 10.
2. Nothing in the Scotland Act prevents the UK Parliament from legislating on matters which are within devolved competence: section 28(7) makes that clear. However during the passage of the Scotland Act, the UK Government announced that it "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." (In this context 'devolved matters' does not refer just to matters that are within the legislative competence of the Scottish Parliament and could, therefore, potentially be included within an Act of the Scottish Parliament. It additionally is taken to refer to matters which, although reserved, affect the breadth of the devolved institutions' powers - i.e. the legislative competence of the Scottish Parliament or the executive competence of the Scottish Ministers.) This has become known as the Sewel Convention, and its purpose is to reflect and respect the devolution settlement and the role of the devolved institutions.
3. In certain circumstances it can be sensible and advantageous for Scotland if, with the consent of the Scottish Parliament (signified by approval of an appropriate motion), the Scottish Ministers agree with the UK Government that a Westminster Bill should include provisions on devolved matters. Scottish Ministers will consider promoting a Legislative Consent Motion (formerly referred to as a 'Sewel Motion') in a number of circumstances:
- Where it would be more effective to legislate on a UK basis in order to put in place a single UK-wide regime (e.g. powers for the courts to confiscate the assets of serious offenders);
- Where there is a complex inter-relationship between reserved and devolved matters that can most effectively and efficiently be dealt with in a single Westminster Bill (e.g. the introduction of civil partnerships).
- Where the UK Parliament is considering legislation for England and Wales which the Scottish Government believes should also be brought into effect in Scotland, but no Parliamentary time is available at Holyrood (e.g. to strengthen protection against sex offenders);
- Where the provisions in question, although they relate to devolved matters, are minor or technical and uncontroversial (e.g. powers for Scottish Ministers to vary the functions of the Central Council for Education and Training in Social Work);
- Where the breadth of the powers of the Scottish Parliament and/or Scottish Ministers would be enhanced in a manner that could not be achieved unilaterally through an Act of the Scottish Parliament (e.g. conferral of functions in relation to railways).
5. It should be emphasised that Legislative Consent Motions normally relate only to certain specific provisions in Westminster Bills, not to whole or even substantial parts of these Bills. Legislation on devolved matters which is passed by means of the Sewel Convention is therefore entirely different in scale and scope from legislation passed by the Scottish Parliament, which accounts for the vast bulk of the total legislative output on devolved matters.
The role of the Parliament
6. The Sewel Convention ensures that Westminster will normally legislate on devolved matters only with the express agreement of the Scottish Parliament, after proper consideration and scrutiny of the proposal in question. To facilitate that scrutiny, the Executive advises the Parliament as early as possible of any Bill that is likely to be subject to a Legislative Consent Motion and will provide the relevant Committee with a detailed memorandum explaining the purpose and effect of any devolved provisions as soon as possible after it is introduced. The Committee will then be able to consider the proposal, taking evidence from interested parties if it considers that necessary, before making a recommendation to the full Parliament as to whether it should approve the Legislative Consent Motion.
7. If significant amendments are made to the provisions of the Westminster Bill which relate to devolved matters during its Parliamentary passage, the Scottish Government will inform the Parliament by means of a supplementary memorandum. A further Legislative Consent Motion would be required if the effect of the amendments was to introduce new provisions on devolved matters which went beyond the terms of the Legislative Consent Motion to which the Parliament had agreed.
8. Normally the Parliament's consent to a Legislative Consent Motion does not in any way shift the boundaries between reserved and devolved matters, which remain as set out in the Scotland Act. The legislative powers and competence of the Parliament remain entirely unchanged; and the fact that a Legislative Consent Motion has been passed does not in any way reduce the ability of the Parliament to legislate itself on the same issue in future. The Sewel Convention is simply a procedural means of preventing Westminster legislating on a devolved matter without the express consent of the Scottish Parliament. If for whatever reason the Parliament does not wish Westminster to legislate for Scotland on the matter in question, it can simply withhold its consent.
9. In December 2005, a revised set of procedures governing the Legislative Consent process were introduced. The new procedures are set out in Chapter 9B of the Scottish Parliament Standing Orders.
- The Sewel Convention is a useful and important aspect of the devolution settlement which operates to the benefit of the people of Scotland;
- In effect, it allows Scotland to have the best of both legislative worlds at Westminster and at Holyrood. Without it, the stark choice would be to do without worthwhile legislation in Scotland or, in those cases within the legislative competence of the Scottish Parliament, to put aside our own legislative priorities to make room for a separate Bill;
- Legislative Consent procedure is used only in relation to specific aspects of a Westminster Bill, and is subject to the express agreement of the Scottish Parliament by means of a Legislative Consent Motion;
- Proposals for a Legislative Consent Motion are set out in a detailed Scottish Government memorandum which can be subject to a process of scrutiny by the relevant Committee of the Parliament;
- The operation of the Sewel Convention is therefore open and transparent, and fully reflects the Scottish Government's accountability to Parliament;
- The use of a Legislative Consent Motion normally has no bearing whatever on the boundaries between reserved and devolved matters as set out in the Scotland Act. The Scottish Parliament continues to enjoy full legislative competence as before.
- The use of Legislative Consent Motions are governed by the Standing Orders of the Scottish Parliament.