Law and Lawyers: EU Withdrawal Bill ~ Legislative consent refused

Wednesday, 22 January 2020

EU Withdrawal Bill ~ Legislative consent refused

National Assembly for Wales

The Scotland Act 1998 section 28(7) confirms that the Parliament of the United Kingdom retains power to make laws for Scotland. There is similar provision in the Government of Wales Act 2006 s.107(5) and in the Northern Ireland Act 1998 section 5(6).

An important constitutional question is when will Westminster exercise its power to legislate in relation to areas of devolved powers.

This question has assumed importance
recently in relation to the European Union (Withdrawal Agreement) Bill - previous post.

The Convention:

Lord Sewel of Gilcomstoun was a member of the Labour government's team in the House of Lords when the Scotland Act 1998 was going through the legislative process. Although he left the House of Lords in 2015, his name continues to be associated with the "Sewel Convention."

During the Scotland Bill's second reading debate, Lord Sewel noted that Westminster would continue to be able to legislate for Scotland but he added - " ... we 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."

The convention came to apply to all three devolved legislatures - Scotland, Wales and Northern Ireland. What is striking about the legislative consent process, aside from how frequently and broadly it has been used, is that in the vast majority of cases it has operated without controversy - see Institute for Government (14 January 2020).

Consent and the Withdrawal Bill:

On 19 December 2019, the Secretary of State for Exiting the EU (Stephen Barclay MP) wrote to the devolved administrations of Scotland and Wales to seek their consent to aspects of the EU (Withdrawal Agreement) Bill. The letters set out the specific aspects of the Bill for which consent was sought - see UK Government Letters to the Devolved Administrations. At the time, a letter was also sent to the Head of the Northern Ireland Civil Service (Mr David Sterling) because the devolved administration in Northern Ireland was not operational. It became operational again on 11 January - previous post.

All three devolved legislatures have refused legislative consent - see Scotland (refusal on 8 January), Northern Ireland (refusal on 20 January) and Wales (refusal on 21 January).

In 2016, the Sewel Convention was put into legislative form for Scotland - Scotland Act 1998 section 28(8). Similarly, in 2017, for Wales - Government of Wales Act 2006 section 107(6). There has been no similar amendment to legislation for Northern Ireland.

A convention and not legally enforceable:

The Supreme Court considered conventions and the Scotland Act 1998 s28(8) in Reference by the Attorney-General for Northern Ireland [2017] UKSC 5 - see judgment at paras. 136 to 151. The court held that section 28(8) recognised the convention for what it is, namely a political convention, and effectively declared that it is a permanent feature of the devolution settlement. That followed from the nature of the content and was acknowledged by the words "it is recognised" and "will not normally" in section 28(8). It was not a legal rule justiciable by the courts. There was legislative recognition of the convention but the legislation merely entrenched it as a convention and not as enforceable law.

Therefore, as far as domestic law is concerned, the government may legislate for Scotland, Wales and Northern Ireland regardless of their refusals to give legislative consent.

Any consequences lie in the political sphere:

A considerable amount of further legislation will be required to implement any deal negotiated with the EU and there will be implications for devolved areas.

Close co-operation between UK government and the devolved administrations will be crucial and questions of legislative consent will continue to arise. Political goodwill between central government and the devolved administrations appears to be at a minimum and a process of rebuilding trust will be required.

The consent process, although it has generally worked well in the past, is now under considerable strain. Brexit has revealed the fragility of the devolution arrangements in the face of a large UK parliamentary majority. It will not be a sustainable strategy politically or practically for government to keep on pushing legislation through regardless of the opinions of the devolved nations - see Institute for Government - The Sewel Convention has been broken by Brexit - reform is now urgent.

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