MEMORANDUM BY THE UK GOVERNMENT
SCOTTISH PARLIAMENT PROCEDURES COMMITTEE INQUIRY
THE SEWEL CONVENTION
Introduction
1. The UK Government welcomes the opportunity to contribute to the Committee's inquiry into the operation of the Sewel Convention.
2. The UK Government notes the areas the Committee's call for evidence suggests written memoranda should address. A number of these relate to the procedures within the Scottish Parliament relating to the Convention. The UK Government considers these procedures to be a matter for the Scottish Parliament. However, the UK Government notes that the Committee wishes to consider how the UK Government and UK Parliament operate in order to inform its own deliberations upon procedures within the Scottish Parliament. This memorandum therefore includes information on the procedures whereby legislation is agreed within government prior to its introduction in the UK Parliament and on the scrutiny given to bills by the UK Parliament.
3. The Convention stems from a commitment made by Lord Sewel, a Scottish Office Minister, during the passage of the Scotland Bill through the House of Lords, that "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 was subsequently incorporated into the Memorandum of Understanding (MOU) (Cm 5420) and the House of Commons Procedures Committee has indicated its support for the Convention. Policy on the Convention is set out in Post-Devolution Primary Legislation Affecting Scotland (DGN 10), one of a series of devolution guidance notes, published on the website of the Department for Constitutional Affairs.
The Application of the Convention
4. The Scotland Act defines the statutory basis of the Scottish devolution settlement. In particular, Schedule 5 to the Act sets out matters reserved to the UK Parliament. The Act is underpinned by a network of administrative agreements, notably bilateral concordats between individual UK Government departments and the Scottish Government, and the overarching Memorandum of Understanding. These establish principles of consultation and communication, especially when one administration's work may bear upon the responsibilities of another.
5. The Sewel Convention applies to provisions in UK Bills which:
* Make provision for a devolved purpose i.e. on a matter which, if contained in a bill before the Scottish Parliament in the same context and for the same purpose, would be within the legislative competence of the Scottish Parliament. It does not apply to alterations to devolved law which are incidental or consequential on provisions made for reserved purposes, although as a matter of good practice UK Government departments consult the Scottish Government on any such changes.
* Provisions which vary the legislative competence of the Scottish Parliament ie which amend Schedule 5 of the Scotland Act. The Act provides an alternative method of making such variations through an order making power under section 30(2). This provides for modifications to Schedule 5 through an Order in Council, subject to the agreement of the UK and Scottish Parliaments. There is a presumption that any such modifications will be made using the powers available under section 30(2). However, there may be times when the UK and Scottish Parliaments agree that it is appropriate to include such provisions in a UK Bill. Policy on the use of section 30(2) orders is set out in a devolution guidance note, Use of Scotland Act Section 30(2) Orders (DGN 14), published on the website of the Department for Constitutional Affairs.
* Provisions which vary the executive competence of the Scottish Ministers, usually in reserved areas. This is frequently referred to as executive devution. Section 63 of the Scotland Act provides an alternative method for such variations of executive competence through an order making power whereby, inter alia, functions in reserved areas may be executively devolved to the Scottish Ministers subject to the agreement of the UK and Scottish Parliaments. Variations of the executive competence of the Scottish Ministers in UK bills can also relate to provisions in devolved areas. Executive devolution of functions in reserved areas relates to matters on which the Scottish Parliament is not competent to legislate. It is often a way of giving powers or functions to Scottish Ministers which they could not otherwise have carried out under the Scotland Act. After the executive devolution of functions in reserved areas to the Scottish Ministers the UK Parliament remains the sole body able to legislate in relation to those matters. If the Scottish Parliament withheld its consent in such cases the bill would be amended so that the functions in Scotland would be carried out by the Secretary of State.
6. The Convention does not apply to provisions in UK Bills in which the UK Parliament legislates for reserved matters in Scotland.
The UK Government's View of the Convention
(a) The Convention's Role in Good Government
7. The UK Government considers the Convention an important part of the devolution settlement. As a sovereign body, the UK Parliament still has the right to legislate on all matters in Scotland. This is explicitly stated in section 28(7) of the Scotland Act. However, the UK Parliament has exercised its sovereignty by devolving legislative competence in certain areas to the Scottish Parliament. The Convention is therefore a means of recognising the sovereignty of the UK Parliament after devolution while respecting the competence of the Scottish Parliament to legislate in matters devolved to it by the Scotland Act. Adherence to the Convention is a way of avoiding the risk of the UK and Scottish Parliaments legislating on the same matter in different ways or against the other. It is thus a means of maintaining the stability of the devolution settlement. The UK Parliament has not knowingly legislated in relation to a matter subject to the Convention since the establishment of the Scottish Parliament without the consent of the Parliament.
8. The UK Government therefore consider that the continuation of the Convention is vital to the success of devolution. It enables pragmatic solutions to be reached in a timely fashion while simultaneously respecting the competence of the Scottish Parliament. Above all the Convention is concerned with ensuring good government. It enables the law to maintain its coherence and reliability. It also enables the benefits of legislation to apply to Scotland in devolved areas, if it is the wish of the Scottish Parliament that it should do so. This is good for Scotland and good for the United Kingdom as a whole.
(b) The Advantages of Including Provisions Subject to the Convention in UK Bills
9. While it is a matter for the Scottish Government and Parliament whether they agree to the inclusion of provisions subject to the Convention in UK bills, the UK Government, for its part, sees a number of policy and handling advantages in doing so on appropriate occasions. These include:
* Legislating for UK or GB wide extent in order to create a coherent UK or GB wide system;
* Legislating for UK or GB wide extent in order to address cross border issues, for which an Act of the Scottish Parliament would be unable to provide;
* Legislating for a coherent UK wide system in order either to implement EU obligations in a timely fashion or vary the powers of the Scottish Ministers in relation to the implementation of EU obligations;
* Legislating to confer executive functions on the Scottish Ministers in reserved areas;
* Legislating with regard to cross border public authorities;
* Legislaing to give legal certainty so there cannot be a challenge to a law on the grounds of vires.
10. It is a matter of choice whether or not the Scottish Government and the Scottish Parliament wish provisions subject to the Convention to extend to Scotland.
(c) The Difference in Types of Provision Requiring Sewel Consent
11. Provisions in UK Bills which touch upon devolved matters but are incidental or consequential upon the main reserved purpose of a Bill do not attract the need for Sewel consent. However, many Sewel motions relate to provisions in UK Bills which relate to very limited policy areas or provisions that are technical in nature. While it might be within the competence of the Scottish Parliament to legislate in relation to those matter, it is a matter of practical good government for such provisions to be included in a UK Bill. This can be shown by referring to bills containing provisions subject to Sewel consent during the current session of the UK Parliament.
12. For instance, the International Organisations Bill is a short technical Bill stemming from the reserved matters of foreign affairs and international relations and will enable the UK to fulfil its international obligations. This touches upon devolved matters in the very limited devolved areas of immunity from suit and legal process and relief from local taxation. While it would be within the competence of the Scottish Parliament to legislate on these very narrow issues in order to fulfil UK international obligations, it is a matter of convenience and good government to cover them in a UK Bill.
13. Furthermore, the Disability Discrimination Bill relates to the reserved matter of equal opportunities. However, the Sewel motion will relate to the very limited area of the exception to the reservation. While the Scottish Parliament would be competent to legislate on these narrow matters, it is sensible to legislate on this point in the UK Bill in order to provide a comprehensive general disability discrimination regime.
14. As noted above, many Sewel motions relate to the executive devolution of functions and powers to the Scottish Ministers in reserved areas. Such matters remain reserved to the UK Parliament which retains the sole right to legislate in relation to them. During the current session of the UK Parliament the Gambling and Railways Bills executively devolve functions in reserved areas to the Scottish Ministers in this way. The Bills themselves cover reserved matters and the policy contained in them is therefore a matter for the UK Parliament. The subject of the Sewel motion is therefore whether or not the Scottish Parliament wishes the Scottish Ministers to exercise functions in reserved areas within a UK or GB wide regime.
15. There is clearly a qualitative difference in Sewel motions executively devolving functions in reserved areas and motions on provisions in UK Bills legislating for a devolved purpose. If the Parliament does not consent to the former the functions in Scotland will be conferred on the Secretary of State. The Government would table amendments in the case of the latter to withdraw the provisions altogether so that they would not apply in Scotland.
16. The UK Government therefore feels that any consideration of the operation of the Convention could consider the variety of provisions it attracts and their very different meanings. It could also acknowledge that it is frequently used for sensible reasons in relation to minor provisions in devolved areas in UK Bills or the executive devolution of functions in reserved areas.
17. The use of the Sewel Convention to legislate for a devolved purpose in no way varies the legislative competence of the Scottish Parliament. The Scottish Parliament remains fully competent to legislate in relation to devolved matters as it sees fit. If the Parliament took the view that it did not wish a UK Act to include provisions for a devolved purpose it retans the right to legislate in an Act of the Scottish Parliament in relation to that matter.
The UK Government's Role in Managing the Convention
18. The UK Government considers that discussions on whether or not to include provisions subject to the Convention in a UK Bill should continue to take place between the UK Government and the Scottish Government. The vast majority of the bills including such provisions are UK Government bills. Therefore it follows that the management of the policy contained within them is a matter for agreement between the UK Government and the Scottish Government. Ultimately, all UK primary legislation is subject to the will of the UK Parliament through its normal scrutiny arrangements. The Scottish Parliament gives its consent to the inclusion of provisions subject to the Convention in UK Bills through the process of giving or withholding Sewel consent .
19. The UK Government takes its responsibilities in managing devolution issues in UK Bills seriously and keeps them under constant review. Official guidance, such as the Cabinet Office's Guide to Legislative Procedures (at http://www.cabinetoffice.gov.uk/legislation/legguide/index.htm), sets out departments' obligations in relation to devolution and the Sewel Convention. In developing proposals for bills and in drafting instructions to Parliamentary Counsel, UK Bill teams and their departmental legal advisers take advice from the Office of the Solicitor to the Advocate General for Scotland (OSAG), which provides departments with legal advice on devolution and Scots law, on whether or not provisions would be subject to the Convention.
20. Bill teams will also liaise closely with the Scottish Government. The Executive will take advice from its own legal advisers. Proposals for the inclusion of provisions subject to the Convention come from both the UK Government and the Scottish Government. Often agreement between the UK Government and the Executive to the inclusion of provisions subject to the Convention in a UK bill is made through ministerial correspondence between UK and Scottish Ministers.
21. The UK Government collectively agrees to legislative proposals at the Legislative Programme Sub Committee of the Cabinet (LP), either through ministerial correspondence or through meetings of the Committee. LP is chaired by the Leader of the House of Commons, who has overall responsibility for the legislative programme. The Secretary of State for Scotland and the Advocate General for Scotland are members of the Committee. Furthermore, policy must be cleared through the relevant policy committee - often Domestic Affairs Committee (DA).
22. A list of bills to be included in the legislative programme is agreed some time before the Queen's Speech at a meeting of LP. Prior to this departments will bid for measures to be included in the programme. In doing so departments must indicate the devolution issues they consider will arise and the extent of their discussions with the Scottish Government.
23. Following the Queen's Speech individual bills are cleared for introduction into the UK Parliament following consideration at LP. The text of the bill is supported at LP by a memorandum for the use by ministers setting out its contents. This includes a description of the impact of devolution on a bill. The Leader of the House expects substantive devolution issues to be resolved before a Bill is discussed at LP. LP will not agree to the inclusion of provisions subject to the Convention unless Scotland Office Ministers and the Advocate General are satisfied that devolution issues, including the need for Sewel consent if particular provisions are to be included, have been resolved.
24. The Executive has committed to seeking the Scottish Parliament's consent before the final amending stage in the first House at Westminster. Thins that, should the Parliament withhold its consent, the UK Government should normally table amendments to excise the provisions subject to the Convention for the final amending stage in the first House if at all possible. In order to table such amendments, the relevant UK department would need to gain agreement across Government through ministerial correspondence. Departments would also have to draft instructions for Parliamentary Counsel. In the case of complex provisions, drafting by Counsel may take some time. Therefore it is important that sufficient time is allowed for seeking such agreement and for the drafting, tabling and scrutiny of amendments in the UK Parliament in order to be able to take account of the will of the Scottish Parliament without creating difficulties in handling legislation at Westminster.
The Role of the Scotland Office
25. The Secretary of State for Scotland is the guardian of the Scottish devolution settlement. His role is set out in a devolution guidance note, The Role of the Secretary of State for Scotland (DGN 3), published on the website of the Department for Constitutional Affairs. The Secretary of State has a particular responsibility for safeguarding the Sewel Convention and is supported by the Parliamentary Under Secretary of State, who has a specific role in ensuring good relations with the Scottish Government and who works closely with the Minister for Parliamentary Business. As members of most Cabinet Committees, Scotland Office ministers are aware of devolution issues across government and can act as necessary. The Secretary of State is also copied into correspondence between UK and Scottish Ministers.
26. Scotland Office officials work collaboratively with bill teams across the UK Government on Scottish devolution issues in UK bills. The Office also engages closely with officials in the Cabinet Office and the Scottish Government's Constitutional Policy Unit.
Parliamentary Handling of Bills
27. If it is proposed to amend a bill to include provisions subject to the Convention once it has been introduced at Westminster agreement must be reached between the UK Government and the Scottish Government. To that end UK Government bill teams and Scottish Government officials actively engage during the passage of bills so that early consideration is given to whether any amendments within devolved competence should be included. In such cases, the Scottish Government will, if an amendment attracts the Convention, consider if it needs to submit a supplementary memorandum to the Scottish Parliament or seek additional consent. The Executive will also liaise with the UK Government bill team on any timing issue that might arise.
28. UK Government amendments to bills usually require clearance within Government through ministerial correspondence, to which Scotland Office ministers will contribute if necessary.
29. Provisions attracting the Sewel Convention in UK Bills are subject to the same degree of scrutiny as other provisions in legislation. The additional scrutiny provided by the Scottish Parliament of these provisions gives a further dimension to the consideration of the relevant parts of the Bill and so adds to the quality of the legislation eventually enacted.
Draft Bills
30. Bills to be published in draft either for consultation or for pre-legislative scrutiny are not normally discussed at meetings of LP, but are cleared for publication through ministerial correspondence. The expectation is that provisions in bills to be published in draft which include proposals within the scope of the Convention will have been previously agreed with the Scottish Government through an exchange of correspondence, copied to the Secretary of State for Scotland.
Private Members' Bills
31. As the devolution guidance note, Post Devolution Legislation Affecting Scotland makes clear atraphs 14 and 15, the same procedures should be followed for private members' bills supported by the UK Government as apply to Government bills. The UK Government will not support a private members bill which includes provisions subject to the Convention without the agreeing with the Scottish Government that it will seek the consent of the Scottish Parliament to the inclusion of those provisions in the UK Bill.
Scotland Office,
February 2005