The Sewel Convention

SCOTTISH PARLIAMENT PROCEDURES COMMITTEE INQUIRY

MEMORANDUM BY THE SCOTLAND OFFICE

Introduction

1. The Government thank the Scottish Parliament Procedures Committee for the invitation to comment on post-devolution primary legislation affecting Scotland.

2. Devolution has not created a federal UK; Westminster retains sovereignty. But as Lord Sewel emphasised during the passage of the Scotland Act, that supremacy is best exercised with restraint. To act otherwise would run counter to the spirit of devolution:

"the devolution of legislative competence to the Scottish parliament does not affect the ability of Westminster to legislate for Scotland even in relation to devolved matters. Indeed, as paragraph 4.4 of the White Paper explained, we envisage that there could be instances where it would be more convenient for legislation on devolved matters to be passed by the United Kingdom Parliament. However, as happened in Northern Ireland earlier in the century, 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 "Sewel" convention has subsequently been endorsed by the House of Commons Procedure Committee and the Memorandum of Understanding (MoU) and Devolution Guidance Notes (DGN), and reflected in the Companion to the Standing Orders of the House of Lords. A similar convention applies to legislation affecting Northern Ireland.

3. The MoU and Guidance Notes make it clear the UK Government approaches the devolved administration for agreement on devolved provisions. The appropriateness or otherwise of "Sewel" motions are therefore a matter for the relevant administration and legislature. But the Government believe that there will continue to be occasions where it makes sense to legislate on a GB or UK basis, even on devolved matters - subject of course to the "Sewel" convention. There may, for example, be a suitable legislative vehicle available at Westminster which would save legislative time in the Scottish Parliament. Moreover, legislation at Westminster, subject to the convention, can be an appropriate means of dealing with issues which straddle the devolved and reserved divide.

4. Devolution Guidance Note 10 is attached at Annex A for the Committee's information. It can also be viewed on the website of the Office of the Deputy Prime Minister (www.devolution.odpm.gov.uk). DGN 10 sets out how the Legislative Programme Committee (LP) expects Government departments to give effect to this policy intention, while ensuring the smooth running of the Government's legislative programme. It is important to note DGN 10 does not extend to legislation which deals with emergencies or is similarly exceptional. ;

5. As already indicated, the Government recognise that procedural issues in the Scottish Parliament and Scottish Government are respectively matters for each body. This memorandum therefore does not comment on the procedures used to deal with Sewel motions (the method by which the Scottish Parliament's approval is gained) by either the Scottish Parliament or Scottish Government.

6. Attached at Annex B is a list of Sewel motions to date for the Committee's information.

7. The Committee may wish as a comparison to consider the similar arrangements in Devolution Guidance Note 8, which outlines the principles underpinning post-devolution primary legislation affecting Northern Ireland.

8. In general:

• the MoU indicates there will be consultation with the Scottish Government on policy proposals affecting devolved matters whether or not they involve legislative change;
• although the Sewel convention refers to the Scottish Parliament, UK departments in practice deal with the Scottish Government. Eithhe Government or the Scottish Government can take the initiative in establishing whether Sewel consent is needed. It is for the Scottish Government to indicate the view of the Scottish Parliament and to take whatever steps are appropriate to ascertain that view; and
• whether consent is needed depends on the purpose of the legislation. Consent need only be obtained for legislative provisions which are specifically for devolved purposes, although the Government believe it is good practice for UK departments to consult the Scottish Government on changes in devolved areas of law which are incidental to, or consequential on, provisions made for reserved purposes. The Scottish Parliament Procedures Committee may be aware that UK departments bringing legislative proposals to LP are expected to address the need for consultation or consent.

Benefits of the Sewel Convention

9. The Government believe the Sewel Convention allows pragmatic solutions to be developed in proposing legislation, in both the UK and Scottish Parliaments. The Convention allows legislation at Westminster to be made for devolved matters when there are practical benefits for doing so, whilst recognising the role of the Scottish Parliament. Benefits include:

• reflecting the extent of legislation by the UK Parliament, which either the Scottish Government wish to apply, or that needs to be extended to Scotland (for example, to make provisions in England and Wales work properly);
• maximising the efficient use of the time of legislators in both the UK and Scottish Parliaments, by avoiding the Scottish Parliament making identical legislation to provisions planned for England by the Government. This increases the Scottish Parliament's capacity to deliver by freeing up time for legislation on other devolved matters;
• enabling the UK Parliament to make UK-wide legislation, perhaps to ensure a single effective measure such as establishing a single UK implementing body; and
• to enable legislation to be made for devolved matters in Scotland securely, i.e. to avoid any risk of legal challenge to the vires of the Scottish Parliament.

Legislation based on any of these benefits often involves dealing with highly technical matters, which may not in fact raise any, or any significant policy issues. If not included for Scotland in a UK Bill, the Scottish Parliament might have great difficulty in finding the time to legislate in these areas.

Other Considerations

10. The Committee may also find the following information helpful:

• the Government and the Scottish Government work closely together to establish which provisions in a Bill are subject to the Sewel Convention. But in the end, the terms on which the Scottish Parliament's consent is sought are a matter for the Scottish Government;
• the use of the Sewel Convention involves no loss of legislative competence by the Scottish Parliament (this includes those circumstances where the Scottish Government approaches the Government to include provisions relating to a devolved matter in a Westminster Bill). Approval of legislation under the Sewel Convention does not preclude the Scottish Parliament from legislating again on the same matter; and
• the UK Minister taking through a Bill with devolved provisions will be answerable to the UK Parliament for the passage of the legislation, but will not be generally accountable for the relevant devolved matter. The responsibility for the devolved provision generally passes to the Scottish Ministers on Royal Assent, and it is usually appropriate for the Scottish Ministers to exercise any powers to commence the legislation so far as it applies to devolved matters in Scotland.

Conclusion

11. The Government firmly believe the Sewel Convention works in tandem with the principles of communication and consultation enshr the Memorandum of Understanding. The Convention has worked well and the Government are committed to and believe in its practical benefits.

November 2002

Annex A

DEVOLUTION GUIDANCE NOTE 10

POST-DEVOLUTION PRIMARY LEGISLATION AFFECTING SCOTLAND

SUMMARY

• The Government announced on 21 July 1998 "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."

  This is now stated in the Memorandum of Understanding with the Devolved Administrations.

  • The convention applies when legislation makes provisions specifically for a devolved purpose. It does not apply when legislation deals with devolved matters only incidentally to, or consequentially upon, provision made in relation to a reserved matter, although it is good practice to consult the Scottish Government in these circumstances.
  • The convention relates to Bills before Parliament, but departments should approach the Scottish Government on the same basis for Bills being published in draft, even though there is no formal requirement to do so.

  • The same procedures should be followed for Private Member's Bills to be supported by the Government.

  Introduction

  1. This note sets out guidance for UK Government departments on handling legislation affecting Scotland. The Government announced on 21 July 1998 "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" (Lords Hansard col 791). This is now stated in the Memorandum of Understanding (MOU) with the devolved administrations and the Commons Procedure Committee has indicated its support for the convention. The convention applies when legislation makes provision specifically for a devolved purpose (see below); it does not bite when legislation deals with devolved matters only incidentally to, or consequentially upon, provision made in relation to a reserved matter. This note sets out how Legislative Programme Committee expects departments to give effect to this policy intention, while ensuring the smooth management of the Government's legislative programme. The note does not extend to legislation which deals with emergencies or is similarly exceptional.

  General

  2. In general:

  • the MOU indicates that there will be consultation with the Scottish Government on policy proposals affecting devolved matters whether or not they involve legislative change;
  • although the convention refers to the Scottish Parliament, UK departments will in practice deal with the Scottish Government. Departments should approach the Executive to gain consent for legislation when appropriate. It will be for the Scottish Government to indicate the view of the Scottish Parliament and to take whatever steps are appropriate to ascertain that view.
  • whether consent is needed depends on the purpose of the legislation. Consent need only be obtained for legislative provisions which are specifically for devolved purposes, although Departments should consult the Scottish Government on changes in devolved areas of law which are incidental to or consequential on provisions made for reserved purposes.
  • always consult your Legal Adviser and the Scotland Office if you are in any doubt about whether a proposal may trespass on devolved matters. Do not assume that the Scottish Government will necessarily share your view about where the boundaries lie as between reserved and devolved matters; and always consult Legal Advisers, including the Office of the Solicitor to the Advoneral (OSAG), and the Scottish Government about these issues at an early stage in developing proposals for legislation.

  3. Departments bringing legislative proposals to LP committee will be expected to address the need for consultation or consent as described in the following paragraphs.

  Long-term legislative plans

  4. Any submission to LP for the inclusion in a future legislative programme of a particular Bill should state clearly that the proposed Bill:

  1. either does not apply to Scotland at all; or has provisions which apply to Scotland but, in the words of the Scotland Act 1998, "relate to" reserved matters and do not alter Scots law on non-reserved matters;
  2. has provisions applying to Scotland and relating to reserved matters, but also contains provisions which make incidental or consequential changes to Scots law on non-reserved matters (i.e. which are for reserved rather than devolved purposes); or
  3. contains provisions applying to Scotland and which are for devolved purposes, or which alter the legislative competence of the Parliament or the executive competence of the Scottish Ministers.

  In determining whether provisions of a Bill are for devolved purposes, departments should have regard to the legislative context of the Bill as a whole.

  5. Where necessary, the paper should indicate what proportion of a proposed Bill falls into each category.

  6. Only Bills with provisions in category III are subject to the convention requiring the consent of the Scottish Parliament. (Although the main thrust of a Bill may be directed at reserved matters it may nevertheless contain some provisions in this category.) At LP, the responsible Minister should say whether he or she expects that the Scottish Government and Parliament will agree to any such provisions.

  7. Bills in category I or in category II do not require the consent of the Scottish Parliament. However the effects on non-reserved matters, including incidental or consequential modifications to the law, will in some cases be significant. LP will expect departments to have plans for consultation with the Scottish Government in accordance with the MOU and the relevant bilateral concordats. Such consultation may be undertaken in confidence, and the Scottish Government can be expected to respect any such confidence.

  Bills ready for introduction

  8. The essential requirement is that by the time proposals reach LP devolution-related issues have been substantively resolved. Papers for LP are already required to contain a statement to that effect. Papers for LP should also identify the clauses which fall into each of the categories above.

  9. If a Bill has provisions in category III:

  (i) where the provisions are of major significance in the Bill, there should have been ;prior consultation with the Scottish Government on these and the LP paper should ;indicate that it will be possible to confirm at Second Reading that the Scottish ;Parliament has consented;

  (ii) where the provisions are less significant, seeking consent need not hold up the Bill's ;progress at Westminster. The aim in such cases should be for consent to be obtained ;by the time those clauses are debated in committee, and the absolute deadline will be ;the last opportunity for them to be amended while the Bill is still before Parliament.

  10. The paper should also:

  • identify any provisions which will change the legislative competence of the Scottish Parliament and the policy clearance for such provisions; and
  • identify any provisions that will change powers or functions of the Scottish Ministers, for example to give them regulation making or other powers, and the policy clearance for the change.

  11. If a Bill has provisions in category II, or which would have a significant effn devolved matters, the paper should indicate what consultations there have been with the Scottish Government or what plans there are for such consultation. The paper should indicate the outcome of any reference to the Joint Ministerial Committee or alternative dispute-resolution arrangements.

  12. Finally, LP papers should say whether there are any potential amendments where the consent of the Scottish Parliament might have to be sought or which might prove controversial there.

  Draft Bills

  13. The convention relates to Bills before Parliament, but departments should approach the Scottish Government on the same basis for Bills being published in draft. There is, however, no requirement to seek consent of the Scottish Parliament before publishing a draft. It may sometimes be helpful for the consent of the Scottish Parliament for a Bill to be sought on the basis of a (published) draft.

  Private Members' Bills

  14. Essentially the same procedures should be followed for Private Members' Bills to be supported by the Government, with some minor modifications to reflect the fact that the procedures for Private Members' Bills are less certain than for Government Bills.

  15. Departments should consult the Scottish Government at an early stage about any Private Members' Bill that they are minded to support containing provisions in category III. The aim should be for consent to be obtained by the time of Commons Committee stage. Before then, the Government may need to reserve its position pending consent, particularly if the Bill was introduced in the House of Lords. Departments seeking clearance to oppose a Private Members' Bill in category III on policy grounds need only consult the Scottish Government if the Bill has a substantial effect on devolved matters. It is possible that Private Members will claim to have themselves obtained the consent of the Scottish Parliament for such a Bill and rely on this as an argument in favour of the Bill. Even if there are not UK policy grounds for opposing such a Bill, the Government will resist the provisions on devolved matters if Scottish Ministers indicate that the Scottish Parliament has not given its consent, and will move any necessary amendments at Commons Committee or Report stage.

  16. In line with the MOU and concordats, there should also be early consultation with the Scottish Government where a department proposes to support a Private Members' Bill with provisions in category II or which would have a significant effect on devolved matters.

  During the passage of legislation

  17. During the passage of legislation, departments should approach the Scottish Government about Government amendments changing or introducing provisions requiring consent, or any other such amendments which the Government is minded to accept. It will be for the Scottish Government to indicate the view of the Scottish Parliament. No consultation is required for other amendments tabled. Ministers resisting non-Government amendments should not rest solely on the argument that they lack the consent of the Scottish Parliament unless there is advice to that effect from the Scottish Government.

  18. The Scottish Government can be expected to deal swiftly with issues which arise during the passage of a Bill, and to recognise the exigencies of legislative timetables (e.g. when forced to consider accepting amendments at short notice). Nevertheless since the last opportunity for amendment is at Third Reading in the Lords or Report Stage in the Commons the absence of consent should not be a bar to proceeding with the Bill in the interim.

  Office of the Deputy Prime Minister

  October 2002

  Annex B TABLE OF SEWEL MOTIONS

  BILL	/strong />	SEWEL MOTION APPROVED	ROYAL ASSENT
  1. Food Standards*	Susan Deacon	23 June 1999	11 Nov 1999
  2. Financial Services and Markets*	Angus MacKay	23 June 1999	14 June 2000
  3. Electronic Communications*	Angus MacKay	23 June 1999	25 May 2000
  4. Limited Liability Partnerships*	Angus MacKay	23 June 1999	20 July 2000
  5. Sea Fishing Grants (Charges)	John Robertson	8 December 1999	28 Jul 2000
  6. Representation of the People	Wendy Alexander	13 January 2000	9 Mar 2000
  7. Sexual Offences (Amdt)	Jim Wallace	19 January 2000	30 Nov 2000
  8. Political Parties, Elections and Referendums (1)	Frank McAveety	9 March 2000	30 Nov 2000
  9. Regulation of Investigatory Powers	Jim Wallace	6 April 2000	28 Jul 2000
  10. Learning and Skills	Henry McLeish	18 May 2000	28 July 2000
  11. Race Relations (Amdt)	Jackie Baillie	25 May 2000	30 Nov 2000
  12. Insolvency	Angus MacKay	1 June 2000	30 Nov 2000
  13. Care Standards	Sam Galbraith	22 June 2000	20 Jul 2000
  14. Political Parties, Elections and Referendums (2)	Frank McAveety	6 July 2000	30 Nov 2000
  15. Government Resources & Accounts	Jack McConnell	6 July 2000	28 July 2000
  16. Criminal Justice and Courts Service	Jim Wallace	5 October 2000	30 Nov 2000
  17. Health and Social Care Modernisation	Malcolm Chisholm	17 January 2001	11 May 2001
  18. Tobacco Advertising and Promotion	Malcolm Chisholm	17 January 2001	7 November 2002
  19. International Criminal Court	Jim Wallace	18 January 2001	11 May 2001
  20. Outworking	Alasdair Morrison	31 January 2001	Private Members Bill - Withdrawn
  21. Criminal Justice and Police	Iain Gray	7 February 2001	11 May 2001
  22. International Development	Malcolm Chisholm	8 March 2001	26 February 2003
  23. Culture and Recreation	Allan Wilson	8 March 2001	Withdrawn
  24. Armed Forces	Iain Gray	29 March 2001	11 May 2001
  25. Adoption and Children (1)	Jack McConnell	4 April 2001	7 November 2002
  26. Adoption and Children (2)	Jack McConnell	24 October 2001	7 November 2002
  27. Proceeds of Crime	Jim Wallace	24 October 2001	24 July 2002
  28. Anti-Terrorism, Crime and Security	Iain Gray	15 November 2001	14 December 2001
  29. NHS Reform and Health Care Profession	Malcolm Chisholm	22 November 2001	25 June 2002
  30. Adoption and Children (3)	Cathy Jamieson	30 January 2002	7 November 2002
  31. Police Reform	Dr Richard Simpson	30 January 2002	24 July 2002
  32. Enterprise	Jim Wallace	17 April 2002	7 November 2002
  33. Private Hire Vehicles (Carriage of Guide Dogs etc.)	Peter Peacock	19 June 2002	7 November 2002
  34. Police Reform (2)	Dr Richard Simpson	27 June 2002	24 July 2002

  * Approval of Westminster legislation by the Scottish Parliament before it assumed its full powers on 1 July 1999.