What is the Sewel Convention?

The “Sewel Convention” is a name for the self-denying ordinance (agreement not to legislate) under which the UK Parliament will “not normally” legislate on a matter devolved to the Scottish Parliament, Senedd or Northern Ireland Assembly without the “consent” of those bodies.

“Legislative consent” is provided via a legislative consent motion in one of the devolved legislatures which is debated and voted on. This follows publication of a legislative consent memorandum in which the relevant devolved government recommends that consent is either granted or withheld.

The purpose of the Sewel Convention is to achieve “harmony” between legislatures in areas of competing competence, avoid duplication of effort and enable the UK Parliament to make UK-wide legislation where appropriate.

As a constitutional convention, Sewel is not a legal rule. Although it is recognised in legislation, the Supreme Court has ruled that this has not converted Sewel “into a legal rule justiciable by the courts”.

The terms of the Sewel Convention and the procedure for legislative consent are set out in:

When does the Sewel Convention apply?

The Sewel Convention is engaged when a bill introduced to the UK Parliament:

  • changes the law in a devolved or transferred policy area
  • alters the legislative competence of a devolved legislature
  • alters the executive competence of devolved ministers or departments

The Guide to Making Legislation states that UK Government departments must “identify from an early stage” whether their legislation will have one or more of the above effects. Departments must then provide a “devolution analysis” which is later “tested” with devolved counterparts.

The Parliamentary Business and Legislation Committee (PBL Committee), a Cabinet committee which considers “matters related to the Government’s parliamentary business and delivery of the legislative programme”, expects the responsible UK Government department to have obtained “agreement in principle” from the relevant devolved government before a bill is formally submitted.

The Sewel Convention does not apply to secondary legislation.

Is there always agreement about whether Sewel applies to a bill?

Determining whether a UK bill’s provisions engage the Sewel Convention is not always straightforward and has been a source of disagreement between the UK Government and the devolved governments on several occasions. Disagreement typically occurs where the devolved governments take a broader view of how legislation affects devolved or transferred matters.

If there is disagreement, the PBL Committee may decide to delay the introduction of a UK bill. This is to ensure that the progress of other legislation at Westminster is not delayed.

Until 2018, it was relatively rare for there to be disagreement, but as the Senedd’s Legislation, Justice and Constitution Committee observed in a 2021 report, following Brexit the UK and devolved governments came to “interpret the Sewel Convention differently”.

What is the procedure for legislative consent?

The standing orders of the Scottish Parliament, Senedd and Northern Ireland Assembly govern their internal procedures for legislative consent:

  • A legislative consent memorandum is tabled in the devolved legislature by a devolved minister. This:
    • sets out the provisions a devolved government believes engage the Sewel Convention
    • explains the effects those provisions would have in devolved or transferred areas or on the devolution settlement
    • recommends whether the legislature should give its “consent” to all or part of the bill under consideration
  • The legislative consent memorandum is referred to a lead committee of the devolved legislature.
  • The lead committee reports (or the time for it to do so expires).
  • There is a vote in plenary on a legislative consent motion either to grant or withhold consent for the bill, in part or in full.

A devolved government cannot seek to table a legislative consent memorandum in its corresponding legislature until a UK bill has formally been introduced in the UK Parliament. The final vote on the legislative consent motion must take place in a devolved legislature before the final amending stage in the UK Parliament.

What happens if consent is refused?

If a devolved legislature refuses to grant legislative consent, then the clerk of that legislature notifies the Clerk of the House of Commons (PDF) and the Clerk of the Parliaments while enclosing the associated motion and proceedings.

A decision not to grant consent is referenced on the Commons Order Paper and the ‘bills in progress section of the Lords Business Paper. The responsible UK Government minister is also expected to make an oral statement before third reading in the Lords on efforts to secure consent and the reasons for its refusal.

The UK Government then broadly has three options:

  • The provisions could be amended so that the relevant devolved legislature is able to provide consent.
  • The UK bill could be amended so that the relevant provisions no longer apply to Scotland, Wales or Northern Ireland, meaning that legislative consent is no longer required.
  • As the UK Parliament remains sovereign, it could pass the legislation anyway.

The consequences of (and remedies for) disregarding the Sewel Convention are, as with any constitutional convention, ultimately political.

Further reading

The Sewel Convention and legislative consent

About the author: Dr David Torrance is the devolution specialist at the House of Commons Library.

Image by: House of Commons via Flickr

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