Increasing numbers of laws for Wales are being made in the UK Parliament. The Senedd is asked for consent from Westminster to do this, but what happens when this consent isn’t granted?
This article looks at this process, and how the UK Parliament responds when consent is refused, through the example of one UK (then) Bill: the Trade (Australia and New Zealand) Act, and one UK Bill still going through Parliament: the Strikes (Minimum Service Levels) Bill.
Requesting, and refusing, consent
A Legislative Consent Memorandum (LCM) is laid in the Senedd when a UK Bill covers policy areas devolved to Wales. Members then vote on whether or not the Senedd should give its consent for Westminster to legislate on its behalf.
An increasing number of LCMs are being introduced by the Welsh Government. In the first two years of the Sixth Senedd, 85 LCMs and supplementary LCMs (SLCMs) relating to 37 UK Bills have been laid. In comparison, 48 LCMs and SLCMs relating to 32 UK Bills were laid for the entirety of the Fifth Senedd.
While Senedd decisions on legislative consent are not legally binding, the Sewel Convention states that the UK Parliament will “not normally” legislate if a devolved legislature withholds its consent.
In addition to increasing numbers of LCMs, the frequency of UK Bills becoming law despite the Senedd withholding its consent is also increasing. In the first two years of the Sixth Senedd, the Senedd voted to withhold consent from all or part of six UK Bills that have since received Royal Assent.
The Trade (Australia and New Zealand) Act
The Trade (Australia and New Zealand) (then) BillTrade (Australia and New Zealand) Act was introduced in the House of Commons on 11 May 2022. It was a short and technical Bill relating to procurement chapters in the wider UK-Australia and UK-New Zealand free trade agreements.
An LCM was laid by the Welsh Government on 25 May 2022. The Welsh Government did not object to the overall purpose of the then Bill. However, it recommended that the Senedd withhold its consent due to the inclusion of concurrent powers in clause 1.
A power that can be exercised by both Welsh Ministers and UK Ministers in relation to Wales.
The Minister for the Economy, Vaughan Gething, wrote to the UK Minister on 16 May 2022 to request the inclusion of equivalent or ‘concurrent plus’ powers, rather than the concurrent powers currently included.
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.
During the then Bill’s second reading in the House of Commons, the then Secretary of State for International Trade, Anne-Marie Trevelyan, said:
…[the UK Government] are committed to not normally using the concurrent power in this Bill without the devolved administrations’ consent, and never without consulting the Administrations first.
This wording was repeated by UK Ministers throughout the then Bill’s parliamentary stages. In several instances, the UK Minister re-stated the commitment to “consult” with the Welsh Government before using powers in clause 1, with no mention of seeking consent. The UK Ministers didn’t reference the Welsh Government’s specific concerns relating to concurrent powers.
The Interministerial Group (IMG) for Trade, established as part of the new Intergovernmental Agreement, was repeatedly cited by UK Ministers as a forum for discussion for the then Bill. However, in the three meetings of the IMG to date, there is no mention of the Bill in any of the communiqués, and no evidence of discussion of the concurrent powers included on the face of the bill.
In correspondence with the Legislation, Justice and Constitution Committee, the Minister for Economy said the UK Government had not offered any further discussions with regard to any amendments to the then Bill. The Minister also said he had not received a response to his letter of 16 May 2022 requesting the inclusion of equivalent or concurrent plus powers in the Bill.
The Senedd voted to withhold consent from the then Bill on 31 January 2023. By this date the Bill had completed its Commons stages unamended, and was awaiting its Lords report stage.
The Strikes (Minimum Service Levels) Bill
The Strikes (Minimum Service Levels) Bill would allow the Secretary of State to set minimum service levels for certain public services during periods of strike action in England, Scotland and Wales.
The Welsh and UK governments disagree on the need for Senedd consent for the Bill. The UK Government argued that the Bill relates to employment rights and industrial relations, which are reserved policy areas. The Welsh Government said the Bill would negatively impact the delivery of devolved public services, such as health, education, and fire and rescue services.
Amendments were tabled in the House of Commons that would have given the Senedd a vote of consent on the Bill becoming operational in Wales. However, these amendments were defeated, with the UK Minister arguing that consent was not required.
The Senedd voted to withhold its consent to the Bill on 25 April 2023. During his speech on the consent vote, the Counsel General, Mick Antoniw, said the UK Government had shown a “lack of any respect for the Sewel Convention”.
Increased visibility of consent decisions in the House of Lords
Following a report from the House of Lords Constitution Committee, and a subsequent recommendation from the Procedure and Privileges Committee, the Lords Order Paper (the document setting out business for that day) is now tagged with consent decisions.
The impact of this can be seen in the Trade (Australia and New Zealand) Act’s Lords report stage, the first stage to be held after the Senedd voted to withhold consent. During this stage, Liberal Democrat peer, Lord Purvis of Tweed, said:
Today’s Order Paper notes that Welsh legislative consent has been withheld. We should take seriously why the Welsh Government and Parliament have not been able to provide legislative consent in these areas.
Consent decisions also appear in the Commons Order Paper. The Lords has also established the procedure that when legislative consent has been refused or not yet granted by the time of a Bill’s third reading, a Minister should draw it to the attention of the House before third reading commences.
A normalised approach to breaking the Sewel convention?
The Trade (Australia and New Zealand) Act received Royal Assent on 23 March 2023, despite the Senedd voting to withhold its consent, making it the sixth Act in two years to be passed without the full consent of the Senedd. The First Minister has raised concerns about the breaking of the Sewel convention becoming ‘normalised’. He told the Senedd:
[When] you've [broken the Sewel convention] once, [doing] it again becomes easier, and the second time leads to the third time very rapidly.
Article by Philip Lewis, Senedd Research, Welsh Parliament