In this guest blog Professor Nicola McEwen explores the impact of the Brexit process on the authority of the Scottish Parliament.
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As with all guest blogs, what follows are the views of the author, not those of SPICe or the Scottish Parliament.
Founding legislation and the limits of the Sewel Convention
The founding legislation of the Scottish Parliament – the Scotland Act 1998 – made clear that devolution did ‘not affect the power of the Parliament of the United Kingdom to make laws for Scotland’. However, the constitutional convention that the Westminster parliament will not normally legislate with regard to devolved matters, or alter the competences of the devolved institutions, without the consent of the Scottish Parliament, has been widely considered to be a cornerstone of the devolution settlement.
The symbolic significance of the Sewel convention was underlined by its inclusion, in part at least, in the Scotland Act 2016, following the recommendation of the cross-party Smith Commission to put Sewel on a statutory footing. Concerns were raised at the time that the Scotland Act 2016 did not go as far as the Smith Commission had intended. It failed to put the process and substance of the convention into statute and failed to provide clarity about the presumably abnormal situations where the convention may not apply.
These limitations have been exposed by the Brexit process. In the first case brought before it by Gina Miller, the Supreme Court confirmed that the inclusion of the Sewel convention in the devolution statutes did not alter the fact that it has no legal effect, nor is its use or non-use subject to judicial review. Second, despite the withholding of consent by the Scottish Parliament in relation to its effect on devolved competence, the EU (Withdrawal) Act was passed by the Westminster parliament.
This marked the first time that the convention was set aside by the UK parliament, following a formal process where Scottish parliamentary consent was sought. The Withdrawal Act also introduced a new consent procedure requiring the UK Government to secure a ‘consent decision’ from the Scottish Parliament before introducing regulations that constrain its ability to modify retained EU law. Crucially, though, this departs from the meaning of consent embodied in the Sewel convention. In the EU (Withdrawal) Act, a ‘consent decision’ includes the Scottish Parliament agreeing to a motion on the regulation, deciding not to agree such a motion, or agreeing to a motion that refuses to consent to the regulations.
Brexit legislation and Scottish Parliament consent
On 8 January 2020, the Scottish Parliament voted to withhold consent for the EU (Withdrawal Agreement) Bill. This is unlikely to influence the content or progress of that legislation, especially in light of the new government’s parliamentary majority and its determination to see the UK exit the EU by the end of January. The WAB will be followed by a range of Brexit-related bills set out in the December Queen’s speech, including an Agriculture Bill, Fisheries Bill, Trade Bill, Immigration and Social Security Co-ordination (EU Withdrawal) bill, Private International Law (Implementation of Agreements) Bill, and an Environment Bill. Each of these is likely to engage the Sewel convention. None is likely to secure the consent of the Scottish Parliament.
Speaking before the Scottish Parliament Finance and Constitution Committee, the Cabinet Secretary for Government Business and Constitutional Relations, Michael Russell, reiterated his position that the Scottish Government will seek consent for any legal changes that are necessary to maintain a reliable body of law, as was done in the case of the Healthcare (International Arrangements) Bill in the last parliament, and is likely to be done for Agricultural payments legislation in the coming months. These, however, are exceptions. In the main, the Scottish Government is committed to withholding consent for other Brexit-related legislation where the effects are more political. In previous iterations of these Brexit Bills, all of which fell when the Westminster parliament was dissolved in November 2019, legislative consent memoranda made clear the Scottish Government’s unwillingness to lodge motions seeking legislative consent unless amendments were made in response to its concerns, and ‘in conjunction with wider discussions with UK Government on legislative consent… restoring the confidence of the Scottish Government and Scottish Parliament in the operation of the legislative consent convention’. It seems likely that a similar position will be taken when these bills return to Westminster. It seems equally likely that the withholding of consent by the Scottish Parliament will make little difference to the fate of the legislation.
Sewel in the current political climate
It is difficult to see how constructive discussions can take place on how to restore the Sewel convention to its former glory in the current political climate. The respective performances of the SNP and the Conservatives north and south of the border in the UK General Election have emboldened the governments they lead to pursue conflicting constitutional paths. The paradox of the Sewel convention is that it only functioned as a principle and process that fostered a culture of cooperation so long as its limits were untested. It requires, at once, a UK Government and Parliament that respects the authority of the Scottish Parliament and the other devolved legislatures to withhold their consent in a way that preserves their autonomy to forge a different path in devolved areas, and a Scottish Government and Parliament that respects the ultimate authority of the Westminster Parliament to make or unmake any laws, including laws that affect devolved matters.
Fundamentally, the Sewel impasse is a reflection of the weakness of intergovernmental relations. More effective and cooperative intergovernmental working could identify and address difficult issues long before the formal legislative process kicks in. Despite the apparent clarity in the distinction between reserved and devolved competences, there have always been overlaps between them. The 2016 devolution settlement had already increased reserved/devolved interdependencies. Brexit does so even more intensely. There has never been a greater need for effective intergovernmental processes and machinery to manage these interdependencies. And yet, despite the long-running joint review of intergovernmental relations initiated by the Joint Ministerial Committee, meaningful reforms seem a long way off. Especially on Brexit issues, trust between the governments was low before the election. It is likely to be even lower now.
Professor Nicola McEwen