What is Legislative Consent?

The introduction of the EU Withdrawal Bill in the UK Parliament and the indication by the UK Government (in the Explanatory Notes to the Bill) that consent would be sought for the Bill from the devolved legislatures has led to renewed interest in the legislative consent process.

The UK Parliament has always been able to ask the Scottish Parliament to provide consent to it legislating on behalf of the Scottish Parliament in devolved matters, or to increasing the powers of Scottish Ministers in reserved matters.

Devolved matters which have been subject to legislative consent include:

  • local elections
  • law enforcement
  • health.

Powers over reserved matters which have been devolved to Scottish Ministers include those to:

  • impose equalities’ duties on public authorities
  • secure future ScotRail franchises
  • design and implement an appropriate Emissions Performance Standard enforcement regime for Scotland.

The legislative consent process operates under the Sewel Convention, named after the Scottish Office Minister who led the Scotland Bill, which established the Scottish Parliament, through the House of Lords in 1998.

The UK Parliament retains authority to legislate on any issue, whether devolved or not. However, Lord Sewel stated during the passage of the Scotland Bill in 1998 that the UK Government expected “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 Convention was put on a statutory footing by the Scotland Act 2016.

However, in its consideration of the Sewel Convention in January 2017, the UK Supreme Court ruled that Sewel was a political convention which couldn’t be enforced legally through the courts.

The Sewel Convention only applies to primary legislation; bills which if passed become Acts of Parliament. Concerns have been raised recently that there is no similar consent processes for secondary legislation (see the Finance and Constitution Committee European Union Withdrawal Bill Interim Report).  The only exception to this is a process in the Scottish Parliament for dealing with a very specific form of secondary legislation, namely, Public Bodies Act orders.

Public Bodies Act orders

In 2011, in order to reform a number of public bodies which the UK Government was responsible for, the Public Bodies Act was passed. The reforms proposed by the UK Government included abolishing, merging or transferring the functions of a number of UK public bodies, including bodies which dealt with subjects which the Scottish Parliament is responsible for.

A process was set up so that order, which affected a UK public body whose remit fell within the Scottish Parliament’s legislative powers, would require the consent of the Scottish Parliament before it could be made. If the Scottish Parliament withholds its consent the order cannot be made so the Scottish Parliament has more power over the orders than it does over Bills subject to the Sewel Convention.

SPICe has produced a new fact sheet on legislative consent which explains the background to these two forms of legislative consent processes which operate in the Scottish Parliament.

Francesca McGrath, Senior Researcher

Public Information have issued a legislative consent animation which is available on the Scottish Parliament’s YouTube channel.