WHAT IS LEGISLATIVE CONSENT?

What is Legislative Consent?

Lord Sewel will be famous for two things. First, he resigned in disgrace from the House of Lords after a 2015 newspaper sting. Secondly, his name was lent to an important convention in the UK constitution governing the relationships between the UK parliament and the devolved institutions of Scotland, Wales and Northern Ireland. This ‘Sewel Convention’ is also known as ‘Legislative Consent’.

The Sewel Convention was intended to foster co-operative relationships between the UK parliament and the devolved institutions, but as the EU Withdrawal Bill begins to wind its way through parliament ‘Legislative Consent’ looks likely to become a point of tension.

This Briefing will examine the origins of ‘Legislative Consent’ and the history of its use.

‘What shall we do with the drunken sailor?’

The devolution settlements of the late 1990s presented both philosophical and practical problems.

First, the philosophical problem. Devolution means that some powers are vested in the devolved institutions from the UK parliament while others are reserved. However, the UK parliament never gave up its right to legislate directly in Scotland, Wales and Northern Ireland. Partly in case the need might arise and partly to maintain the UK parliament’s sovereignty.

Second, the practical problems. The separation between what is ‘reserved’ and ‘devolved’ powers can become blurry in practice, technically called ‘overlapping legislative competences’.

A past example was the need to maintain common standards for the alcohol testing of sailors in UK maritime waters but this covered both reserved and devolved powers in Scotland. Rather than having both the UK parliament and the Scottish parliament pass laws, it was far simpler for the UK parliament to legislate on behalf of the Scottish Parliament. Acting in this common-sense way was more efficient as the two parliaments did not have to waste time creating a duplicate set of laws.

There were also concerns about legal challenges to the powers of the devolved legislatures which the UK government wanted to prevent.

Lord Sewel and his motions

Foreseeing these eventualities, Lord Sewel, then a junior minister in the Scotland Office, stated in a House of Lord’s debate in 1998 that “we [HM’s Government] 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”.

This convention became known as the ‘Sewel Convention’ and was given a written form in a Memorandum of Understanding signed in 2001, renewed in 2013, between the UK parliament and the devolved institutions of Scotland, Wales and Northern Ireland, that:

“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, Paragraph 14, (October 2013)

These agreements that allow for the UK government to legislate on devolved matters are known as ‘Legislative Consent Motions’ (LCMs).

LCMs in Practice

The process for LCMs, although differing to minor degrees, follows a standard pattern:

• UK Government approaches the devolved administration to request consent for legislation.
   
• The devolved government prepares a memorandum explaining whether it thinks consent is expedient but the LCM is automatically sent to the devolved legislature. It cannot be blocked at this stage.
   
• The administration’s memo is passed onto a committee of the devolved legislature which prepares a report for the whole legislature. Again, the LCM cannot be blocked by the committee.
   
• The report is considered by the whole legislature, a motion is prepared, debated and then voted on. It is here that the LCM can be refused.
   
• If the LCM passes, the clerk of that legislature informs the Clerk of the House of Commons that consent has been given. Normally, the LCM is supposed to be ready by the Second Reading of the Bill at Westminster.

It is perhaps better to think of Legislative Consent as something akin to an event where social etiquette prevents people from breaching the rules of society. ‘Legislative Consent’ allows the UK government to directly legislate while still acting within the spirit of devolution. The devolved institutions, through the LCM process, can make sure their concerns are addressed; their right to use the relevant devolved power is preserved, but they are unable to veto any proposed law.

LCMs & Brexit

Most LCMs have been uncontroversial: the mutual recognition of same-sex marriages in Scotland, England and Wales; the London Olympics and the case of the drunken sailors, and so forth. The Scottish Parliament and the Welsh Assembly has considered 159 and 38 LCMs respectively with no refusals. LCMs have helped maintain respectful relationship across the governments and legislature of the United Kingdom through a formal process designed to create consensus.

However, the devolved legislatures passed LCMs when the UK parliament has amended devolutionary settlements. This is where Brexit will pose a unique challenge to Legislative Consent.

Brexit will lead to powers held by EU returning to the UK. However, the complicated relationship of EU and UK law; the specifics of how the devolution settlements became tied into the UK-EU relationship; deciding how the powers are returned and where they will finally reside will not be simple or easy. The politics and legality of Legislative Consent will be tested as never before.

Additional Reading

Supreme Court Decision on Miller vs. Secretary of State for Exiting the European Union. See paras 136 to 151. 

Memorandum of Understanding (October 2013). 

Jack Simson Caird, Vaughne Miller, Arabella Lang, ‘European Union (Withdrawal) Bill, House of Commons Library Briefing Paper, No. 8079, see section 10.5