Convention on legislating on devolved matters

11.11Even in the case of devolved matters, the United Kingdom Parliament retains the power to legislate on any matter affecting Scotland, Wales or Northern Ireland, although in November 1998 the Government expressed the view that it ‘would expect a convention would be adopted that Westminster would not normally legislate with regard to devolved matters without the consent of the devolved body’ (the ‘Sewel Convention’) and would be likely to oppose a Private Member's Bill seeking to alter the law on devolved subjects in Scotland or Northern Ireland.1

This understanding has now been placed on a statutory footing in the Scotland Act 2016 and the Wales Act 2017, which each contain a provision to the following effect:

‘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 or Welsh Assembly]’2

Although this is now a statutory provision it does not prevent the UK Parliament legislating without the consent of the devolved legislatures, although it increases the political difficulty in doing so. This was recognised in the Miller case where the Supreme Court held that:

‘by such provisions, the UK Parliament is not seeking to convert the Sewel Convention into a rule which can be interpreted, let alone enforced, by the courts; rather, it is recognising the convention for what it is, namely a political convention, and is effectively declaring that it is a permanent feature of the relevant devolution settlement. That follows from the nature of the content, and is acknowledged by the words (“it is recognised” and “will not normally”), of the relevant subsection. We would have expected the UK Parliament to have used other words if it were seeking to convert a convention into a legal rule justiciable by the courts.’3

Footnotes

  1. HC 148 (1998–99) p vi, para 15. In respect of Scotland, this arrangement is called the ‘Sewel Convention’ after an undertaking by Lord Sewel during the passing of the Scotland Bill, HL Deb (1998–99) 592, c 791. For details of the method by which the government seeks the consent of the Scottish Executive, see HC Deb (2002–03) 399, c 291W, and Minutes of Proceedings of the Scottish Parliament, 17 and 31 January 2001.
  2. Section 63A of the Scotland Act 1988, inserted by s 1 of the Scotland Act 2016; s A1 Government of Wales Act, inserted by s 1 of the Wales Act 2017.
  3. R (on the application of Miller and another) (Respondents) v Secretary of State for Exiting the UK [2017] UKSC 5, [2017] NI 141, [2017] 1 All ER 593, at para 148.