On Monday 18 June an emergency debate was held in the House of Commons on the Validity of the Sewel Convention. The debate was requested by the Scottish National Party following the lack of time allowed for discussion of devolution issues in the House of Commons consideration of the Lords amendments to the EU (Withdrawal) Bill (“the Withdrawal Bill”). On 15 May, the Scottish Parliament had refused to give its legislative consent to the provisions of the Withdrawal Bill.
Pete Wishart (Perth and North Perthshire) (SNP)
Is the right hon. Gentleman not ashamed, embarrassed and appalled that we have only 15 minutes to discuss these critical devolution issues? These amendments were designed in the House of Lords, but we, the directly elected Members, have not had the opportunity to debate them. Is he not ashamed of himself?
No. I think that the Government allowed perfectly adequate time for debate on these issues. As the hon. Gentleman knows, these questions on devolution matters have been discussed in great detail by me, my Ministers and officials, and the Welsh and Scottish Governments and legislatures for many months. As I hope to explain, the Government have made very substantial compromises to address precisely the concerns raised by both Scotland and Wales. I am pleased that the Welsh Government have accepted the merits of the compromise we proposed and reached an agreement.
The Sewel Convention
The Sewel Convention is set out in both the Scotland Act 1998 and the Government of Wales Act 2006, having been amended by the Scotland Act 2016 and the Wales Act 2017, respectively. The Acts state that nothing in them affects the power of Parliament to legislate for the devolved legislatures “But it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the [their] consent”. While only recently added to statute, the Sewel Convention has operated in practice since 1999 and also applies to the Northern Ireland Assembly.
In 2017 the Supreme Court, in its ruling on whether Parliament should be consulted before Article 50 to leave the EU was triggered, found that the Sewel Convention:
[…] plays an important role in the operation of the UK constitution. But the policing of its scope and operation is not within the constitutional remit of the courts. The devolved legislatures do not have a veto on the UK’s decision to withdraw from the EU.
In June 2017 the UK Government conceded that the consent of the devolved legislatures would be sought for the Withdrawal Bill. On 15 May the Scottish Parliament refused consent to the Withdrawal Bill in a vote supported by Labour, Liberal Democrat and Green MSPs. The Welsh Government reached an intergovernmental agreement with the UK Government on amendments to the EU Withdrawal Bill and consequently the Assembly voted to give its consent to the Bill on the same date.
Both the Scottish Parliament and the National Assembly for Wales passed “Continuity Bills” which would transpose EU law that falls within the devolved competence into devolved law. Both Bills were referred to the Supreme Court by the Attorney General to test whether they are in competence.
The Secretary of State for Scotland’s statement
The emergency debate was also prompted by a Statement made by the Secretary of State of Scotland, the Rt. Hon David Mundell MP made on 14 June. Concluding, Mr Mundell stated:
We are now therefore faced with the reality that the Scottish Parliament has not given consent for this critically important legislation that provides certainty across the UK. That is not a situation that any of us would have chosen. It is not, however, a crisis, nor is it unforeseen. While the devolution settlements did not predict EU exit, they did explicitly provide that in situations of disagreement the UK Parliament may be required to legislate without the consent of devolved legislatures.
In any situation, agreement is our aim, and we will continue to seek legislative consent, take on board views and work with the Scottish Government on future legislation, just as we always have done. We on this side of the House have compromised. We have made every effort to reach agreement. We have sought consent. Now we are legislating in line with the Sewel convention to ensure the whole of the United Kingdom leaves the EU with as much legal certainty as possible. That is what people and businesses in Scotland need.
The Opposition parties saw this as disregarding the Sewel Convention. Paul Sweeney MP (Labour) stated:
The Secretary of State was responsible for taking the Scotland Act 2016 through this place, he was responsible for inserting the Sewel convention into the legislation, and now he is the person responsible for trampling all over that convention that underpins the devolution settlement.
Ian Blackford MP (SNP) stated:
Section 28(7) of the Scotland Act 1998 confirms that Westminster retains its unlimited sovereignty, and arguably it can never relinquish that, but the devolution settlement provides through the Sewel convention that the legislative power will not be used if there is disagreement and the devolved legislatures do not give consent. Today’s statement effectively turns Sewel on its head by saying that, if there is disagreement—that is, no consent on a legislative consent motion—the UK Government can proceed to legislate. This is an extremely serious development in UK Government thinking, and it risks the security of the devolution settlement.
The Emergency Debate
The debate was opened by Ian Blackford MP on behalf of the SNP. He said that the Sewel Convention was proving to be “unworkable” and stated:
Under the constitutional rules, this Government should not proceed without the Scottish Parliament’s consent. By constitutional convention and invariable practice since 1999, the Bill should not complete its Westminster stages in its current form without that consent. Despite the murmurings of the current Secretary of State, the Scotland Office stated back in 2005 that the UK Government “considers that the continuation of the Convention is vital to the success of devolution.”
What has changed? The only thing that has changed is that the Scottish Parliament has not given its consent and the UK Government, showing utter disrespect, have decided to proceed.
Brendan O’Hara MP (SNP) was concerned that “once the precedent is established that Westminster can overrule a majority vote in the Scottish Parliament whenever there is disagreement, a standard will have been set and the ground rules will have been established.”
Ian Murray MP (Labour) raised the issue of transparency. He pointed out that during the passage of the Scotland Bill in 2015 he had put forward amendments to put the JMC on a statutory footing to allow minutes and agendas to be published publicly. He urged the Chancellor of the Duchy of Lancaster:
[…] to give a clear commitment that every single piece of communication that has happened in the JMC with regards to the devolution amendments is published. I shall tell him why he should do that. While this whole process is secret and while people are kept in the dark about who said what and who agreed to what, all we get is: this is a power grab, or this is a powers bonanza. The people of Scotland then have to decide which one is the most appropriate. As the compromise was made, I want to know, and the people of Scotland want to know, how far apart the two sides are.
Jamie Stone MP, (Liberal Democrat) suggested that “some sort of Back-Bench liaison, cross-party body of MPs and MSPs would be constructive for the future operation of both Parliaments.”
Liz Saville-Roberts MP (Plaid Cymru) said that developing common frameworks for the UK as a whole required mature co-operation between the national Governments of the UK. “It should not be a case of one country asset-stripping powers away from the others to impose a once-size-fits-all England-first framework across all the UK’s countries.” She also noted that Westminster will only be bound by political undertaking in the form of intergovernmental agreement, while the devolved Governments face legal constraints.
Joanna Cherry QC MP (SNP) explored the meaning of “not normally” in the context of the Sewel Convention:
The Sewel convention is a rule, not merely a description of practice, so the word “normally” has to be understood as an exception to the rule. According to the principles of legal interpretation, we make exceptions to a rule either where the underlying rationale for the rule does not apply or where there is some overriding competing principle. The rationale for the Sewel convention is protection of devolved autonomy. It is not clear to me […] why the protection of devolution should be suspended by the Brexit vote.
The Chancellor of the Duchy of Lancaster, the Rt. Hon. David Lidington MP, replied for the UK Government:
The IGA [Intergovernmental Agreement] states the commitment of both the UK Government and the Welsh Government to proceed by agreement. It makes it clear that the Sewel convention will be fully respected, and we have made it clear that, despite the fact the Scottish Government and the Scottish Parliament have so far rejected a legislative consent motion, we will act in our future dealings with the Scottish authorities in the same way as we propose to act in relation to Wales, by observing in full the political commitments into which we have entered under the intergovernmental agreement.
Article by Alys Thomas, National Assembly for Wales Research Service