Legislation passed by the UK Parliament sometimes covers policy areas devolved to the Senedd. In our article published last week, we looked at the process by which the Senedd consents to UK legislation. But what happens with UK Acts where the Senedd withheld its consent? In this article, we consider three Acts to which the Senedd has withheld its consent, to see how those powers are being exercised in Wales.
How is Senedd consent sought?
The Sewel Convention says the Senedd’s consent should normally be sought when the UK Parliament legislates in a devolved policy area.
However, there has been an increasing number of instances where the Senedd has withheld consent, but the UK Government has proceeded with the legislation. In the Sixth Senedd, the Senedd has voted to withhold consent to all or part of six UK Acts of Parliament.
A parliamentary convention which states the UK Parliament “will not normally legislate with regard to devolved matters without the consent” of the devolved legislatures.
The Sewel Convention is not legally binding.
This article looks at three of the six Acts the Senedd withheld consent for, as a representative sample of the current debate around Sewel. In each of these pieces of legislation, clauses to which the Senedd withheld consent remained in the final text of the Act.
Nationality and Borders Act 2022
The Nationality and Borders Act 2022 deals mostly with the reserved policy area of immigration. However, the Welsh Government argued that provisions within the Bill (as it was) relating to social care required the consent of the Senedd. Specifically, it said provisions relating to age assessments and the use of methods to establish the age of someone involved in the immigration process gave UK Ministers the ability to impose functions on Welsh local authorities.
In February 2022, the Senedd voted to withhold consent for these clauses. Despite this, the powers remained in the Bill.
The National Age Assessment Board (NAAB) was established under sections 50 and 51 of the Act. It will conduct age assessments upon referral from a local authority in England, Wales, Scotland or Northern Ireland. The NAAB is currently in a phased rollout.
The Minister for Social Justice, Jane Hutt MS, said the methods of assessing age are in “direct opposition” to existing methods used by the Welsh Government. This would mean Welsh local authorities would have the “challenge of navigating two statutory but conflicting approaches to age assessment”. It’s unclear when the NAAB will become operational in Wales.
Professional Qualifications Act 2022
The Professional Qualifications Act 2022 contains powers to create a new framework for the recognition of overseas professional qualifications in the UK. The Welsh Government cited the inclusion of ‘concurrent powers’ within the Bill, as it was, as a major reason it could not recommend consent. While some changes were made following Welsh Government negotiations with the UK Government, including the inclusion of ‘concurrent plus powers’, the Senedd twice voted to withhold its consent to the Bill.
A power that can be exercised by both Welsh Ministers and UK Ministers in relation to Wales.
A power in relation to Wales that can be exercised by Welsh Ministers and UK Ministers, but only by the latter if Welsh Ministers grant their consent first.
The UK Parliament has passed one piece of secondary legislation under the Act: the Architects Act 1997 (Amendment) Regulations 2022. These regulations create a new post-Brexit framework for the recognition of architect qualifications in the UK. The regulation of architecture as a profession is a reserved matter. Therefore, Welsh Ministers would not have been asked for consent under the powers within the Act.
In June 2023 the Act was also cited in relation to a treaty between the UK and Switzerland. The treaty relates to the recognition of professional qualifications and will need to be given effect in domestic law. The UK Government’s explanatory memorandum says:
The Professional Qualifications Act 2022 contains powers which can be used by the Government or the Devolved Administrations to implement international recognition agreements.
This raises key questions about the Sewel Convention as it relates to international obligations.
Trade (Australia and New Zealand) Act 2023
The Trade (Australia and New Zealand) Act 2023 makes changes to the procurement chapters in the wider UK-Australia and UK-New Zealand free trade agreements.
The Welsh Government did not object to the policy within the Bill, as it was. However, it recommended the Senedd withhold consent from clause 1, as it contained concurrent powers. The Senedd voted to withhold its consent on 31 January 2023. The Act as passed allows the Senedd to remove the UK Government side of the concurrent power and turn it into a power exercisable by Welsh Government only.
Since becoming law, one regulation has been passed under the Act, using the clause to which the Senedd withheld its consent.
However, large amounts of these regulations do not apply to Welsh authorities. The explanatory notes to the regulations say Welsh Ministers “are bringing forward their own instrument to amend [procurement rules] as they apply to devolved Welsh authorities”. In 2023, the Welsh Government passed two regulations in this area.
The debate over the Sewel Convention continues
The Welsh Government has said, in certain circumstances, it is “sensible and advantageous” to use UK Bills to legislate in Wales with the consent of the Senedd. Including when there is “no time available for similar provisions to be brought forward in the Senedd”, or when the area of English and Welsh law in question is highly interconnected. The Welsh Government has recommended consent to an increasing number of UK Bills in the Sixth Senedd.
However, the Counsel General and Minister for the Constitution, Mick Antoniw, has also been critical of the increasing numbers of UK Bills being passed which do not have Senedd consent. Following a meeting of the four governments of the UK in June 2023, the Counsel General said:
Where the Senedd does not consent to a UK Government Bill, the UK Government needs to rediscover its respect for devolution and reverse the position whereby breaches of the Sewel Convention have become the default.
The UK Minister for Intergovernmental Relations, Michael Gove, said in March 2023, that the “overwhelming majority of pieces of UK Government legislation secure legislative consent motions”. The Minister went on to say:
…some legislation consequent upon our withdrawal from the European Union, because of the different positions taken by the Welsh Government and the Scottish Government on that question, do mean that it is more difficult to secure LCMs.
The debate around the limits of and respect for the Sewel Convention continues. The Senedd’s Legislation, Justice and Constitution Committee continues to scrutinise the use of the Sewel Convention and UK Bills to legislate in devolved areas. The Counsel General appeared before the Committee to give evidence on this, and wider issues within his remit, on Monday 10 July.
Article by Philip Lewis, Senedd Research, Welsh Parliament
